Cowen and
Company, LLC
As Representative of the Several
Underwriters
c/o Cowen and Company, LLC
1221 Avenue of the Americas
New York, New York 10020
1.
Introductory
. Moog Inc., a New York corporation
(the “Company”), proposes to sell, pursuant to the
terms of this Agreement, to the several underwriters named in
Schedule A hereto (the “Underwriters,” or,
each, an “Underwriter”), an aggregate of 2,500,000
shares of Class A Common Stock, $1.00 par value (the
“Class A Common Stock”), of the Company. The
aggregate of 2,500,000 shares of Class A Common Stock so
proposed to be sold is hereinafter referred to as the “Firm
Stock”. The Company also proposes to sell to the
Underwriters, upon the terms and conditions set forth in
Section 3 hereof, up to an additional 375,000 shares of
Class A Common Stock (the “Optional Stock”). The
Firm Stock and the Optional Stock are hereinafter collectively
referred to as the “Stock”. The Class A Common
Stock and the Class B Common Stock, $1.00 par value, of the
Company are hereinafter collectively referred to as the
“Common Stock”. Cowen and Company, LLC
(“Cowen”) is acting as representative of the several
Underwriters and in such capacity are hereinafter referred to as
the “Representative”.
2.
Representations and
Warranties of the Company . The Company represents and warrants to the
several Underwriters as of the date hereof and as of each Closing
Date, and agrees with the several Underwriters that:
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(a)
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The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “Securities
Act”) and the rules and regulations of the Commission (the
“Rules and Regulations”). An “automatic shelf
registration statement” as defined in Rule 405 under the
Securities Act on Form S-3 (File No. 162178) in respect of the
Stock has been filed with the Securities and Exchange Commission
(the “Commission”) not earlier than three
(3) years prior to the date hereof. Such registration
statement, and any post-effective amendments thereto, are
effective; 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 threatened by the
Commission, and no notice of objection of the Commission to the use
of such registration statement or any post-effective
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amendment
thereto pursuant to Rule 401(g)(2) of the Rules and
Regulations 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 “Base
Prospectus” and any preliminary prospectus (including any
preliminary prospectus supplement), if any, relating to the Stock
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations is hereinafter called a “Preliminary
Prospectus”). The automatic shelf registration statement,
including all exhibits thereto and including any documents
incorporated by reference and any prospectus supplement relating to
the Stock that is filed with the Commission and deemed by virtue of
Rule 430B of the Rules and Regulations to be part of such
registration statement, are hereinafter collectively called the
“Registration Statement.” The form of the final
prospectus relating to the Stock filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with
Section 4(a) hereof, is hereinafter called the
“Prospectus”. Any reference herein to the Base
Prospectus, the Pricing Prospectus (as defined below), any
Preliminary Prospectus 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 Securities Act, as
of the date of the respective prospectus; any reference to any
amendment or supplement to the Base Prospectus, any Preliminary
Prospectus 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 Stock filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and
any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated by
reference therein, in each case after the date of the Base
Prospectus, such Preliminary Prospectus 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
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference into the Registration
Statement.
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(b)
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As
of the Applicable Time (as defined below) and as of the Closing
Date or the Option Closing Date, as the case may be, neither
(i) the General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time and the Pricing
Prospectus (as defined below) and the information included on
Schedule D hereto, all considered together (collectively,
the “General Disclosure Package”), nor (ii) any
individual Limited Use Free Writing Prospectus (as defined below),
when considered together with the General Disclosure Package,
included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. As used in this
paragraph (b) and elsewhere in this Agreement:
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“Applicable
Time” means 5:30 P.M., New York time, on September 29,
2009 or such other time as agreed to by the Company and the
Representative.
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“Pricing
Prospectus” means the Preliminary Prospectus relating to the
Stock that is included in the Registration Statement immediately
prior to the Applicable Time including any document incorporated by
reference therein.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the Rules and
Regulations relating to the Stock in the form filed or required to
be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule
433(g) of the Rules and Regulations.
“General Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is identified on Schedule B to this
Agreement.
“Limited Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
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(c)
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No
order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the proposed offering of the Stock has been issued by
the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act has been instituted or
threatened by the Commission, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to
the requirements of the Securities Act and the rules and
regulations of the Commission thereunder 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; provided , however ,
that the Company makes no representations or warranties as to
information contained in or omitted from any Preliminary
Prospectus, in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the
Underwriters’ Information (as defined in
Section 17).
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(d)
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At
the respective times the Registration Statement and any amendments
thereto became or become effective, at the date of this Agreement
and at each Closing Date, each Registration Statement and any
amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations and did not and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the Pricing Prospectus and the
Prospectus and any amendments or supplements to the Prospectus, at
the time the Prospectus or any amendment or supplement thereto was
issued and at each Closing Date, conformed and will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided ,
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however , that the foregoing representations and
warranties in this paragraph (d) shall not apply to
information contained in or omitted from the Registration Statement
or the Prospectus, or any amendment or supplement thereto, in
reliance upon, and in conformity with, written information
furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriter
Information (as defined in Section 17). The Pricing Prospectus
and the Prospectus contains all required information under the
Securities Act with respect to the Stock and the distribution of
the Stock. The statistical and market related data included in the
Registration Statement, the Pricing Prospectus, the General
Disclosure Package and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and
such data agree with the sources from which they are derived. The
documents incorporated by reference in the Prospectus, when they
were filed with the Commission conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents
are filed with Commission will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
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(e)
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Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Stock or until any
earlier date that the Company notified or notifies the
Representative as described in Section 4(e), did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus, including any
document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified, or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances prevailing at
the subsequent time, not misleading.
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(f)
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The
Company has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the offering
and sale of the Stock other than the Prospectus and other
materials, if any, permitted under the Securities Act and
consistent with Section 4(b) below. The Company will file with the
Commission all Issuer Free Writing Prospectuses in the time and
manner required under Rules 163(b)(2) and 433(d) under the
Securities Act.
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(g)
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(A) At the time of the filing
of the Registration Statement and 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 Securities Act) made any offer
relating to the Stock in reliance on the exemption of Rule 163
under the Securities Act, the Company was a “well-known
seasoned issuer” as defined in Section 405 under the
Securities Act; and (B) (i) 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) of the Securities Act) and
(ii) as of the date hereof (with such date being used as the
determination date for purposes of this clause (B)(ii)), the
Company was not and is not an “ineligible issuer” as
defined in Rule 405 under the Securities Act (without taking
into account any determination by the Commission pursuant to Rule
405 that it is not necessary that the Company be considered an
“ineligible issuer,” including, without limitation, for
purposes of Rules 164 and 433 under the Securities Act) with
respect to the offering of the Stock as contemplated by the
Registration Statement.
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(h)
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The
Company and each of its subsidiaries (as defined in
Section 15) have been duly organized and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of organization and are each duly qualified to do
business and are in good standing as foreign corporations or other
legal entities in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where
the failure to so qualify or have such power or authority
(i) would not have, singularly or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole or (ii) impair in any material
respect the ability of the Company to perform its obligations under
this Agreement or to consummate any transactions contemplated by
the Agreement, the Pricing Prospectus, the General Disclosure
Package or the Prospectus (any such effect described in clause
(i) or (ii), a “Material Adverse Effect”). Except
for Moog Europe Holdings I LLC, a New York limited liability
company, Moog Europe Holdings II LLC, a New York limited liability
company, AMC Delaware Inc. (f/k/a/ AMC Controls, Inc), a Delaware
corporation, X.O. Tec Corporation, a Delaware corporation, Ethox
International, Inc. a New York corporation, MMC Sterlization
Services Group, Inc., a Pennsylvania corporation, and Videolarm,
Inc., a Georgia Corporation, the Company owns or controls, directly
or indirectly, only the corporations, partnerships, limited
liability partnerships, limited liability companies, associations
or other entities listed as subsidiaries of the Company in
paragraph 21 of Section 3 in Item 15 of Part IV the
Company’s Annual Report on Form 10-K for the fiscal year
ended September 27, 2008 filed with the Commission on
November 25, 2008, and the Company does not own or control,
directly or indirectly, any other interest in any other
corporations, partnerships, limited liability partnerships, limited
liability companies, associations or other entities. Each such
listed entity is a subsidiary of the Company and is wholly owned,
directly or indirectly, by the Company.
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(i)
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This Agreement has been duly
authorized, executed and delivered by the Company.
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(j)
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The
Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable, and free of any
preemptive or similar rights and will conform to the description
thereof contained in the General Disclosure Package and the
Prospectus.
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(k)
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The
Company has an authorized capitalization as set forth in the
Pricing Prospectus, and all of the issued shares of capital stock
of the Company, including the Stock, have been duly and validly
authorized and issued, are fully paid and non-assessable, have been
issued in compliance with federal and state securities laws and
conform to the description thereof contained in the Pricing
Prospectus and the Prospectus. None of the outstanding shares of
common stock were issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital
stock of the Company or any of its subsidiaries other than those
accurately described in the General Disclosure Package. The
description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted thereunder, set forth or incorporated by reference in the
General Disclosure Package accurately and fairly presents the
information required to be shown with respect to such plans,
arrangements, options and rights under the Securities Act and the
Exchange Act. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of
the Company’s capital stock have been duly authorized and
validly issued and were issued in compliance with federal and state
securities laws.
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(l)
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All
of the issued and outstanding capital stock of each 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 or claim (each, a “Lien”),
except for the Liens under the Second Amended and Restated Loan
Agreement among certain lenders, HSBC Bank USA, National
Association, as administrative agent, and the Company dated as of
October 25, 2006, as amended (the “Loan
Agreement”).
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(m)
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Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in
default (or, with the giving of notice or lapse of time, would be
in default) (“Default”) in the performance or
observance of any obligation, agreement, covenant or condition
contained in any Existing Instruments (as defined below) or any
applicable law, administrative regulation or administrative or
court order or decree, except for such defaults as would not,
individually or in
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the aggregate,
result in a Material Adverse Effect. The execution, delivery and
performance by the Company of this Agreement, and the issuance and
delivery of the Class A Common Stock, and consummation of the
transactions contemplated herein and therein and in the General
Disclosure Package have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach
of, or a Default or a Debt Repayment Triggering Event (as defined
below) under, or the loss of any material benefit under, or the
termination of, or result in the creation or imposition of any Lien
upon any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, license or other instrument to which the
Company or any of its subsidiaries is a party or by which any of
them may be bound (including, without limitation, the
Company’s Loan Agreement) or to which any of the property or
assets of any of them is subject (each, an “Existing
Instrument”), except for such conflicts, breaches, Defaults,
losses or Liens as would not, individually or in the aggregate,
result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or bylaws of the
Company or any of its subsidiaries or any applicable law,
administrative regulation or administrative or court order or
decree applicable to the Company or any of its subsidiaries. As
used herein, a “Debt Repayment Triggering Event” means
any event or condition which gives, or with the giving of notice or
lapse of time would give, 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 of its subsidiaries.
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(n)
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Except for the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws and by
the Financial Industry Regulatory Authority (“FINRA”)
in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of,
or filing, qualification or registration with, any court or
governmental agency or body, foreign or domestic, which has not
been made, obtained or taken and is not in full force and effect,
is required for the execution, delivery and performance of this
Agreement by the Company, the offer or sale of the Stock or the
consummation of the transactions contemplated hereby.
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(o)
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Ernst & Young LLP, who has
expressed its opinion on the audited financial statements and
related schedules included or incorporated by reference in the
Registration Statement, General Disclosure Package, the Pricing
Prospectus and the Prospectus, is an independent registered public
accounting firm as required by the Securities Act and the Rules and
Regulations and the Public Company Accounting Oversight Board
(United States) (the “PCAOB”) and has audited the
Company’s internal control over financial reporting and
management’s assessment thereof.
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(p)
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The
financial statements, together with the related notes and
schedules, included or incorporated by reference in the General
Disclosure Package, Pricing
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Prospectus, the
Prospectus and the Registration Statement fairly present the
financial position and the results of operations and changes in
financial position of the Company and its consolidated subsidiaries
and other consolidated entities at the respective dates or for the
respective periods therein specified. Such statements and related
notes and schedules have been prepared in accordance with generally
accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the
periods involved except as may be set forth in the General
Disclosure Package, Pricing Prospectus and the Prospectus. The
financial statements, together with the related notes and
schedules, included or incorporated by reference in the General
Disclosure Package, Pricing Prospectus and the Prospectus comply in
all material respects with the Securities Act, the Exchange Act and
the rules and regulations thereunder. No other financial statements
or supporting schedules or exhibits are required by the Securities
Act or the Rules and Regulations thereunder to be included in the
General Disclosure Package, Pricing Prospectus and the Prospectus.
There is no pro forma or as adjusted financial information which is
required to be included in the Registration Statement, the General
Disclosure Package, the Prospectus or a document incorporated by
reference therein in accordance with Regulation S-X which has
not been included or incorporated as so required. The summary and
selected financial data included or incorporated by reference in
the General Disclosure Package, the Pricing Prospectus, the
Prospectus and each Registration Statement fairly present the
information shown therein as at the respective dates and for the
respective periods specified and are derived from the consolidated
financial statements set forth or incorporated by reference in the
General Disclosure Package, the Pricing Prospectus, the Prospectus
and the Registration Statement and other financial
information.
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(q)
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Neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
General Disclosure Package, Pricing Prospectus and the Prospectus,
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the General Disclosure Package, Pricing Prospectus
and the Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, general affairs, management, financial
position, prospects, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the General
Disclosure Package, Pricing Prospectus and the
Prospectus.
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(r)
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Except as set forth in the General
Disclosure Package, Pricing Prospectus and the Prospectus, there is
no legal or governmental proceeding pending to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
which, singularly or in the aggregate, if determined adversely to
the Company or any of its subsidiaries,
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might have a
Material Adverse Effect; and to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
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(s)
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The
Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate
regulatory or other governmental agencies or bodies as are
necessary to conduct the business as now conducted by the Company
and its subsidiaries and as described in the General Disclosure
Package and the Prospectus, each such certificate, authorization
and permit being in full force and effect and the Company and each
subsidiary is in compliance with the terms of each such
certificate, authorization and permit, except where the failure to
possess or comply with any such certificate, authorization or
permit would not, individually 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, or non-compliance with, any such
certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
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(t)
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Neither the Company nor any of its
subsidiaries is or, after giving effect to the offering of the
Stock and the application of the proceeds thereof as described in
the General Disclosure Package, Pricing Prospectus and the
Prospectus will become, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
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(u)
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Neither the Company nor any of its
officers, directors or affiliates has taken or will take, directly
or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of
the price of any security of the Company.
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(v)
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The
Company and its subsidiaries own or possess sufficient trademarks,
trade names, patent rights, copyrights, licenses, approvals, trade
secrets and other similar rights (collectively, “Intellectual
Property Rights”) reasonably necessary to conduct their
businesses as now conducted; and the expected expiration of any of
such Intellectual Property Rights would not result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would result
in a Material Adverse Effect.
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(w)
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The
Company and each of its subsidiaries has good and marketable title
to all the properties and assets reflected as owned in the
financial statements of the Company and its consolidated
subsidiaries free and clear of any Liens except for the Liens under
the Loan Agreement and except such as do not materially and
adversely affect the value of such property and do not materially
interfere with the
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use made or
proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal
property held under lease by the Company or any such subsidiary are
held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made
or proposed to be made of such real property, improvements,
equipment or personal property by the Company or any of its
subsidiaries.
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(x)
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No
strike, work stoppage or other similar labor dispute with the
employees of the Company or any of its subsidiaries, or, to the
knowledge of the Company, with the employees of any principal
supplier of the Company or any of its subsidiaries, exists or, to
the knowledge of the Company or any of its subsidiaries, is
threatened, which would result in a Material Adverse
Effect.
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(y)
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The
Company and any of its subsidiaries and any “employee benefit
plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company or a subsidiary or any of
their respective “ERISA Affiliates” (as defined below)
are and will be in compliance in all material respects with ERISA.
“ERISA Affiliate” means, with respect to the Company or
such subsidiary, any member of any group of organizations described
in Section 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the
Company or such subsidiary is a member. No “reportable
event” (as defined under Section 4043 of ERISA and for
which notice has not been waived by applicable regulations) has
occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their respective ERISA
Affiliates. No “employee benefit plan” established or
maintained by the Company or any of its subsidiaries or any of
their respective ERISA Affiliates, if such “employee benefit
plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined in Title IV of
ERISA). None of the Company, its subsidiaries, or any of their
respective ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title I or IV of ERISA or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
“employee benefit plan” established or maintained by
the Company or any of its subsidiaries or any of their respective
ERISA Affiliates that is intended to be qualified under
Section 401 of the Code is and will be so qualified and
nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification.
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(z)
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Except as otherwise disclosed in the
General Disclosure Package or as would not, individually or in the
aggregate, result in a Material Adverse Effect, as the case may be,
(i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or
wildlife,
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including,
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively,
“Materials of Environmental Concern”), or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, “Environmental
Laws”), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance
with the terms and conditions thereof, nor has the Company or any
of its subsidiaries received any written communication, whether
from a governmental authority, citizens group, employee or
otherwise, that alleges that the Company or any of its subsidiaries
is in violation of any Environmental Law; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority, nor investigation with respect to which the Company or
any of its subsidiaries has received written notice, and no written
notice by any person or entity alleging potential liability for
investigation costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased
or operated by the Company or any of its subsidiaries, now or in
the past (collectively, “Environmental Claims”),
pending, or, to the best of the Company’s or any of its
subsidiaries’ knowledge, threatened or contemplated against
the Company or any of its subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or any of
its subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the best of the Company’s
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal
of any Material of Environmental Concern, that reasonably could
result in a violation of any Environmental Law or form the basis of
a potential Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law. In
the ordinary course of business, the Company and each of its
subsidiaries conducts a periodic review of the effect of
Environmental Laws on its respective business, operations and
properties, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review and the amount of its established reserves,
the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in
a Material Adverse Effect, except as otherwise disclosed in the
General Disclosure Package.
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(aa)
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All
necessary federal, state and foreign income and franchise tax
returns required to be filed by the Company and its consolidated
subsidiaries have been filed, other than those filings being
contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided or those currently payable
without penalty or interest. The Company has made adequate charges,
accruals and reserves in the applicable financial statements
referred to in Section 2(p) above in respect of all federal, state
and foreign income and franchise taxes for all periods as to which
the tax liability of the Company or any of its consolidated
subsidiaries has not been finally determined.
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(bb)
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Each of the Company and its
subsidiaries are insured by recognized, financially sound
institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed
adequate and customary for their businesses including, but not
limited to, policies covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes. Except as disclosed
in the General Disclosure Package, the Company does not have any
reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such
policies expire or (ii) 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 Effect, as the case may be. Neither the Company
nor any subsidiary has been denied any insurance coverage that it
has sought or for which it has applied.
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(cc)
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Except as otherwise disclosed in the
General Disclosure Package, the Company maintains a system of
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Company has established
and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 under the Exchange Act), which
(i) are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made
known to the Company’s principal executive officer and its
principal financial officer by others within those entities,
particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared, (ii) have
been evaluated for effectiveness as of a date within 90 days
prior to the filing of the Company’s most recent annual or
quarterly report filed with the Commission and (iii) are
effective in all material respects to perform the functions for
which they were established. Based on the evaluation of the
Company’s disclosure controls and procedures described above,
the Company is not aware of (a) any significant deficiency in
the
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design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize and report
financial data or any material weaknesses in internal controls or
(b) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls. Since the most recent evaluation
of the Company’s disclosure controls and procedures described
above, there have been no significant changes in internal controls
or in other factors that could significantly affect internal
controls.
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(dd)
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The
minute books of the Company and each of its subsidiaries have been
made available to the Underwriters and counsel for the
Underwriters, and such books (i) contain a complete summary of all
meetings and actions of the board of directors (including each
board committee) and shareholders of the Company (or analogous
governing bodies and interest holders, as applicable), and each of
its subsidiaries since the time of its respective incorporation or
organization through the date of the latest meeting and action, and
(ii) accurately in all material respects reflect all
transactions referred to in such minutes.
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(ee)
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There is no franchise, lease,
contract, agreement or document required by the Securities Act or
by the Rules and Regulations to be described in the Pricing
Prospectus and the Prospectus or a document incorporated by
reference therein or to be filed as an exhibit to the Registration
Statement which is not described or filed therein as required; and
all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Registration Statement are
accurate and complete descriptions of such documents in all
material respects. Other than as described in the Pricing
Prospectus and the Prospectus, no such franchise, lease, contract
or agreement has been suspended or terminated for convenience or
default by the Company or any of the other parties thereto, and
neither the Company nor any of its subsidiaries has received notice
or has any other knowledge of any such pending or threatened
suspension or termination, except for such pending or threatened
suspensions or terminations that would not reasonably be expected
to, singularly or in the aggregate, have a Material Adverse
Effect.
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(ff)
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There are no business relationships
or related-party transactions involving the Company or any
subsidiary or any other person required to be described in the
General Disclosure Package and Prospectus that have not been
described as required.
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(gg)
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No
person or entity has the right to require registration of shares of
Common Stock or other securities of the Company or any of its
subsidiaries because of the filing or effectiveness of the
Registration Statement or otherwise, except for persons and
entities who have expressly waived such right or who have been
given timely and proper notice and have failed to exercise such
right within the time or times required under the terms and
conditions of such right.
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(hh)
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Neither the Company nor any of its
subsidiaries owns any “margin securities” as that term
is defined in Regulation U of the Board of Governors of the
Federal Reserve System (the “Federal Reserve Board”),
and none of the proceeds of the sale of the Stock will be used,
directly or indirectly, for the purpose of purchasing or carrying
any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of
the Stock to be considered a “purpose credit” within
the meanings of Regulation T, U or X of the Federal Reserve
Board.
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(ii)
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Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the
Company or the Underwriters for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Stock.
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(jj)
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No
forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act)
contained in either the Pricing Prospectus, the General Disclosure
Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good
faith.
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(kk)
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The
Company is subject to and in compliance in all material respects
with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is listed on the New York
Stock Exchange, and the Company has taken no action designed to, or
reasonably likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the New York Stock Exchange, nor
has the Company received any notification that the Commission or
FINRA is contemplating terminating such registration or
listing.
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(ll)
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The
Stock has been approved for listing subject to official notice of
issuance on the New York Stock Exchange.
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(mm)
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The
Company and, to the best of its knowledge, its officers and
directors are in compliance in all material respects with
applicable provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith that are
effective as of the date hereof.
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(nn)
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The
Company is in compliance with all applicable corporate governance
requirements set forth in the New York Stock Exchange Rules that
are then in effect and is actively taking steps to ensure that it
will be in compliance with other applicable corporate governance
requirements set forth in the New York Stock Exchange Rules not
currently in effect upon and all times after the effectiveness of
such requirements.
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(oo)
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Neither the Company nor any of its
subsidiaries nor, to the best of the Company’s knowledge, any
employee or agent of the Company or any subsidiary has made any
contribution or other payment to any official of, or candidate for,
any federal, state, local or foreign office in violation of any law
(including the Foreign Corrupt Practices Act of 1977, as
amended).
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(pp)
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There are no transactions,
arrangements or other relationships between and/or among the
Company, any of its affiliates (as such term is defined in
Rule 405 of the Rules and Regulations) and any unconsolidated
entity, including, but not limited to, any structured finance,
special purpose or limited purpose entity, that could reasonably be
expected to materially affect the Company’s liquidity or the
availability of or requirements for its capital resources required
to be described in the Pricing Prospectus and the Prospectus which
have not been described as required.
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(qq)
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The
operations of the Company and its subsidiaries 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, applicable
money laundering statutes and applicable rules and regulations
thereunder (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 or any of its subsidiaries with respect to the Money
Laundering Laws is pending, or to the best knowledge of the
Company, threatened.
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(rr)
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Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries 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.
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(ss)
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There are no outstanding loans,
advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the
Company or any of its subsidiaries to or for the benefit of
(i) any of the officers or directors of (A) the Company
or (B) any of the Company’s subsidiaries or
(ii) any of their respective family members, except as
disclosed in the Registration Statement, the Pricing Prospectus,
the General Disclosure Package and the Prospectus.
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(tt)
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Neither the Company nor any of its
affiliates (within the meaning of NASD Conduct
Rule 2720(b)(1)(a)) directly or indirectly controls, is
controlled by, or is under common control with, or is an associated
person (within the meaning of
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Article I, Section 1(ee)
of the By-laws of FINRA) of, any member firm of FINRA.
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Any certificate
signed by or on behalf of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
3. Purchase, Sale
and Delivery of Offered Securities . On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the respective numbers of
shares of Firm Stock set forth opposite the names of the
Underwriters in Schedule A hereto.
The purchase price
per share to be paid by the Underwriters to the Company for the
Stock will be $28.025 per share (the “Purchase
Price”).
The Company will
deliver the Firm Stock to the Representative for the respective
accounts of the several Underwriters (through the facilities of The
Depository Trust Company issued in such names and in such
denominations as the Representative may direct by notice in writing
to the Company given at or prior to 12:00 Noon, New York time, on
the second full business day preceding the First Closing Date)
against payment of the aggregate Purchase Price therefor by wire
transfer to an account designated by the Company, all at the
offices of Shearman & Sterling LLP, 599 Lexington Avenue, New
York, New York 10022. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a
further condition of the obligations of each Underwriter hereunder.
The time and date of the delivery and closing shall be at
10:00 A.M., New York time, on October 2, 2009, in
accordance with Rule 15c6-1 of the Exchange Act. The time and
date of such payment and delivery are herein referred to as the
“First Closing Date”. The First Closing Date and the
location of delivery of, and the form of payment for, the Firm
Stock may be varied by agreement between the Company and
Cowen.
For the purpose of
covering any over-allotments in connection with the distribution
and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional
Stock. The price per share to be paid for the Optional Stock shall
be the Purchase Price. The Company agrees to sell to the
Underwriters the number of shares of Optional Stock specified in
the written notice by Cowen described below. Such shares of
Optional Stock shall be purchased from the Company for the account
of each Underwriter in the same proportion as the number of shares
of Firm Stock set forth opposite such Underwriter’s name on
Schedule A bears to the total number of shares of Firm
Stock (subject to adjustment by Cowen to eliminate fractions). The
option granted hereby may be exercised as to all or any part of the
Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No
Optional Stock shall be sold and delivered unless the Firm Stock
previously has been, or simultaneously is, sold and delivered. The
right to purchase the Optional Stock or any portion thereof may be
surrendered and terminated at any time upon notice by Cowen to the
Company.
16
The option granted
hereby may be exercised by written notice being given to the
Company by Cowen setting forth the number of shares of the Optional
Stock to be purchased by the Underwriters and the date and time for
delivery of and payment for the Optional Stock. Each date and time
for delivery of and payment for the Optional Stock (which may be
the First Closing Date, but not earlier) is herein called the
“Option Closing Date” and shall in no event be earlier
than two (2) business days nor later than five (5) business
days after written notice is given. (The Option Closing Date and
the First Closing Date are herein called the “Closing
Dates”.)
The Company will
deliver the Optional Stock to the Representative for the respective
accounts of the several Underwriters (through the facilities of The
Depository Trust Company issued in such names and in such
denominations as the Representative may direct by notice in writing
to the Company given at or prior to 12:00 Noon, New York time, on
the second full business day preceding the Option Closing Date)
against payment of
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