Exhibit 10.1
STIFEL FINANCIAL
CORP.
Common Stock
($0.15 par value)
ATM EQUITY OFFERING
SM
SALES AGREEMENT
June 3, 2009
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Stifel, Nicolaus & Company,
Incorporated
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Stifel Financial Corp., a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell from
time to time to or through Merrill Lynch, Pierce, Fenner &
Smith Incorporated (“ Merrill Lynch ”), as sales
agent and/or principal or Stifel, Nicolaus & Company,
Incorporated (“ Stifel Nicolaus ”), as sales
agent (each an “ Agent ”, and together the
“ Agents ”), up to 1,000,000 shares (the “
Shares ” ) of the Company’s common stock,
$0.15 par value per share (the “ Common Stock
”), on the terms set forth in Section 2 of this ATM Equity
Offering SM
Sales Agreement (the “
Agreement ”). The Company agrees that whenever it
determines to sell Shares directly to Merrill Lynch as principal,
it will enter into a separate agreement (each, a “ Terms
Agreement ”) in substantially the form of Annex I hereto,
relating to such sale in accordance with Section 3 of this
Agreement.
Section
1. Representations and
Warranties . The Company represents and warrants to the Agents
that as of the date of this Agreement, any applicable Registration
Statement Amendment Date (as defined in Section 3 below), each
Company Periodic Report Date (as defined in Section 3 below), each
Company Earnings Report date (as defined in Section 3 below), each
Applicable Time (as defined in Section 1(c) below) and each
Settlement Date (as defined in Section 2 below):
(a)
Compliance with Registration Requirements . The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) an “automatic shelf registration
statement” as defined under Rule 405 under the Securities Act
of 1933, as amended (the “ 1933 Act ”), on Form
S-3 (File No. 333-158301), in respect of the Company’s Common
Stock (including the Shares) and other securities described therein
not earlier than three years prior to the date hereof; such
registration statement, and any post-effective amendment thereto,
became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the
Commission, and no notice of objection of the Commission to the use
of such form of registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has
been received by the Company (the base prospectus filed as part of
such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the “ Basic
Prospectus ”; the various parts of such registration
statement, excluding any Form T-1 but including all exhibits
thereto and any prospectus supplement relating to the Shares that
is filed with the Commission and deemed by virtue
of Rule 430B to be part of such
registration statement, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the “ Registration Statement
”; the prospectus supplement specifically relating to the
Shares prepared and filed with the Commission pursuant to Rule
424(b) under the 1933 Act is hereinafter called the “
Prospectus Supplement ”; the Basic Prospectus, as
amended and supplemented by the Prospectus Supplement, is
hereinafter called the “ Prospectus ”; any
reference herein to the Basic Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act; any reference to any amendment or
supplement to the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the 1933 Act and any
documents filed under the Securities Exchange Act of 1934, as
amended (the “ 1934 Act ”), and incorporated
therein, in each case after the date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the
1933 Act relating to the Shares is hereinafter called an “
Issuer Free Writing Prospectus ”).
No order preventing or suspending
the use of the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and the Basic Prospectus and the Prospectus
Supplement, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and the rules
and regulations of the Commission thereunder (the “ 1933
Act Regulations ”) and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
For the purposes of this Agreement,
the “ Applicable Time ” means, with respect to
any Shares, the time of sale of such Shares pursuant to this
Agreement; the Prospectus and the applicable Issuer Free Writing
Prospectus(es) issued at or prior to such Applicable Time, taken
together (collectively, and, with respect to any Shares, together
with the public offering price of such Shares, the “
General Disclosure Package ”) as of each Applicable
Time and each Settlement Date, will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
each applicable Issuer Free Writing Prospectus will not conflict
with the information contained in the Registration Statement, the
Prospectus Supplement or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
General Disclosure Package as of such Applicable Time, will not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(b)
Incorporation of Documents by Reference . The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
complied in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations, and, when read together with the
other information in the Prospectus, (a) at the time the
Registration Statement became effective, (b) at the time the
Prospectus was issued and (c) on the date of this Agreement, did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c)
Independent Accountants . The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(d)
Financial Statements . The financial statements included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly, in all material
respects, the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, present fairly,
in all material respects, in accordance with GAAP the information
required to be stated therein. The selected financial data included
in or incorporated by reference into the Prospectus present fairly,
in all material respects, the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included or incorporated by reference into the
Registration Statement. The pro forma financial statements and the
related notes thereto included in or incorporated by reference into
the Registration Statement, the General Disclosure Package and the
Prospectus, present fairly the information shown therein, have been
prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. Any disclosures
contained in the Registration Statement, the General Disclosure
Package or the Prospectus, or incorporated by reference therein,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G of the 1934 Act and Item 10 of Regulation S-K of
the 1933 Act, to the extent applicable.
(e)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a “ Material Adverse Effect ”),
(B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for dividends on the Common Stock as described in
the Registration Statement in amounts per share that are consistent
with past practice, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(f)
Good Standing of the Company . The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its organization and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(g)
Good Standing of Subsidiaries . Each subsidiary listed on
Schedule 1 hereto (each a “ Subsidiary ” and,
collectively, the “ Subsidiaries ”) has been
duly formed and is validly existing as an entity in good standing
under the laws of the jurisdiction of its formation, has full power
and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign entity to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock or other
ownership interest of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The only
subsidiaries, direct and indirect, of the Company are the
subsidiaries listed on Schedule 1 hereto.
(h)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the quarterly
report on form 10-Q for the quarter ended March 31, 2009,
incorporated by reference into the Registration Statement, the
General Disclosure Package and the Prospectus, in the column
entitled “March 31, 2009” in the Company's Condensed
Consolidated Statements of Financial Condition (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to
in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). The shares of
issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company. The Company’s Common Stock has been registered
pursuant to Section 12(b) of the 1934 Act and is listed on the New
York Stock Exchange (the “ NYSE ”) as well as
the Chicago Stock Exchange, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock from the NYSE and the Chicago
Stock Exchange, nor has the Company received any notification that
the Commission or the NYSE or the Chicago Stock Exchange is
contemplating terminating such registration or listing.
(i)
Authorization of Agreement . This Agreement and any Terms
Agreement has been duly authorized, executed and delivered by the
Company.
(j)
Authorization and Description of the Shares . The Shares
have been duly authorized and reserved for issuance and sale
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement or any Terms Agreement against
payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the Common Stock conforms
to all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the
instruments defining the same; no holder of the Shares will be
subject to personal liability by reason of being such a holder; and
the issuance of the Shares is not subject to the preemptive or
other similar rights of any securityholder of the
Company.
(k)
Absence of Defaults and Conflicts . (a) Neither the Company
nor any of its subsidiaries is in violation of its charter, by-laws
or similar governing instruments or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, “ Agreements and Instruments ”)
except for such defaults that would not result in a Material
Adverse Effect; (b)(i) and the execution, delivery and performance
of this Agreement or of any Terms Agreement and the consummation of
the transactions contemplated herein or in any Terms Agreement and
in the Registration Statement (including the issuance and sale of
the Shares and the use of the proceeds from the sale of the Shares
as described in the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), (ii) nor will such action result in any violation of the
provisions of the charter, by-laws or similar governing instruments
of the Company or any subsidiary, (iii) nor will such action result
in any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their assets,
properties or operations (except for such violations that would not
result in a Material Adverse Effect). As used herein, a “
Repayment Event ” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
subsidiary.
(l)
Absence of Labor Dispute . No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case,
would result in a Material Adverse Effect.
(m)
Absence of Proceedings . There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected to result in a
Material Adverse Effect, or which might materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(n)
Accuracy of Exhibits . There are no contracts or documents
which are required to be described in the Registration Statement or
the Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so described
and filed as required.
(o)
Possession of Intellectual Property . Except as disclosed in
the Registration Statement, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual
property (collectively, “ Intellectual Property
”) necessary to carry on the business now operated by them,
and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse
Effect.
(p)
Absence of Further Requirements . No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering,
issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement or any Terms Agreement,
except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities
laws.
(q)
Absence of Manipulation . Neither the Company nor
any affiliate of the Company has taken, nor will the Company take,
directly or indirectly, any action which is designed to or which
has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares; the Company
will cause its affiliates to refrain from taking, directly or
indirectly, any action which is designed to or which would be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares.
(r)
Possession of Licenses and Permits . The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “ Governmental
Licenses ”) issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct
the business now
operated by them, except where the
failure so to possess would not, singly or in the aggregate, result
in a Material Adverse Effect; the Company and its subsidiaries are
in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(s)
Title to Property . The Company and its subsidiaries have
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Prospectus or (b)
do not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice
of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(t)
Investment Company Act . The Company is not required, and
upon the issuance and sale of the Shares as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be required, to register as an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “ 1940
Act ”).
(u)
Environmental Laws . Except as described in the Registration
Statement and except as would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “ Hazardous Materials ”) or
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “ Environmental Laws ”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that
would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(v)
Registration Rights . There are no persons with
registrations rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registration by the Company under the 1933 Act.
(w)
Accounting Controls and Disclosure Controls . The Company
and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with
management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as described in the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (1)
no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (2) no change
in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(x)
Well-Known Seasoned Issuer . (A)(i) At the time of filing
the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus), and
(iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) under the
1933 Act) made any offer relating to the Shares in reliance on the
exemption of Rule 163 under the 1933 Act, the Company was a
“well-known seasoned issuer” as defined in Rule 405
under the 1933 Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the 1933 Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
1933 Act.
(y)
No Commissions . Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than as contemplated by this Agreement) that
would give rise to a valid claim against the Company or any of its
subsidiaries or the Agents for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Shares.
(z)
Actively-Traded Security . The Common Stock is an
“actively-traded security” exempted from the
requirements of Rule 101 of Regulation M under the 1934 Act by
subsection (c)(1) of such rule.
(aa)
Deemed Representation . Any certificate signed by any
officer of the Company delivered to the Agents or to counsel for
the Agents pursuant to or in connection with this Agreement or any
Terms Agreement shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby as of
the date or dates indicated in such certificate.
(bb)
Compliance with the Sarbanes-Oxley Act. There is and has
been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes-Oxley
Act ”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(cc)
Payment of Taxes . All United States federal income tax
returns of the Company and its subsidiaries required by law to be
filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid,
except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been
provided. The United States federal income tax returns of the
Company through the fiscal year ended December 31, 2008 have been
settled and no assessment in connection therewith has been made
against the Company. The Company and its subsidiaries have filed
all other tax returns that are required to have been filed by them
pursuant to applicable foreign, state, local or other law except
insofar as the failure to file such returns would not result in a
Material Adverse Effect, and has paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company
and its subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the
Company in respect of any income and corporation tax liability for
any years not finally determined are adequate to meet any
assessments or re-assessments for additional income tax for any
years not finally determined, except to the extent of any
inadequacy that would not result in a Material Adverse
Effect.
(dd)
Insurance . The Company and its subsidiaries carry or are
entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full
force and effect. The Company has no reason to believe that it or
any subsidiary will not be able (A) to renew its existing
insurance coverage as and when such policies expire or (B) to
obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.
Neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has
applied.
(ee)
Statistical and Market-Related Data . Any statistical and
market-related data included in the Registration Statement and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and, where required, the
Company has obtained the written consent to the use of such data
from such sources.
(ff)
Foreign Corrupt Practices Act . Neither the Company nor, to
the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company
or any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “ FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(gg)
Money Laundering Laws . The operations of the Company are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(hh)
OFAC . Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or
person acting on behalf of the Company is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“ OFAC ”); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
Section
2. Sale and Delivery
of Shares .
(a) Subject
to the terms and conditions set forth herein, the Company agrees to
issue and sell through the Agents acting as sales agents or
directly to Merrill Lynch acting as principal from time to time,
and the Agents agree to use their commercially reasonable efforts
to sell as sales agents for the Company, the Shares. Sales of the
Shares, if any, through the Agents acting as sales agents or
directly to Merrill Lynch acting as principal will be made by means
of ordinary brokers’ transactions on the NYSE or the Chicago
Stock Exchange or otherwise at market prices prevailing at the time
of sale, at prices related to prevailing market prices or at
negotiated prices.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and such Agent through whom the sale of
Shares are effected on that trading day (other than a day on which
the NYSE or the Chicago Stock Exchange is scheduled to close prior
to its regular weekday closing time, each, a “ Trading
Day ”) that the Company has satisfied its obligations
under Section 6 of this Agreement and that the Company has
instructed such Agent to make such sales. On any Trading Day, the
Company shall sell Shares through only one of the Agents, and in no
event through both, and the Company shall give at least one
business day prior written notice by facsimile or email to the
Agents to notify them of any change of the Agent through whom the
sale of Shares will be effected. For the avoidance of doubt, the
foregoing limitation shall not apply to sales solely to employees
or security holders of the Company or its subsidiaries, or to a
trustee or other person acquiring such securities for the accounts
of such persons in which either Merrill Lynch or Stifel Nicolaus is
acting for the Company in a capacity other than as Agent under this
Agreement. On any Trading Day, the Company may instruct such Agent
through whom the sale of Shares are effected on that trading day by
telephone (confirmed promptly by facsimile or email, which
confirmation will be promptly acknowledged by such Agent) as to the
maximum number of Shares to be sold by such Agent on such day (in
any event not in excess of the number available for issuance under
the Prospectus and the currently effective Registration Statement)
and the minimum price per Share at which such Shares may be sold.
Subject to the terms and conditions hereof, the Agents, severally
and not jointly, shall use their commercially reasonable efforts to
sell as sales agents all of the Shares so designated by the
Company. The Company and the Agents each acknowledge and agree that
(A) there can be no assurance that the Agents will be successful in
selling the Shares, (B) the Agen
