Banc of America Securities
LLC
Deutsche Bank Securities Inc.
Bear, Stearns & Co. Inc
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
BANC OF AMERICA
SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
As Representatives of the several
Underwriters
c/o BANC OF AMERICA SECURITIES LLC
9 West 57 th
Street
New York, NY 10019
Introductory. Western Refining, Inc., a Delaware corporation
(the “Company”), proposes to issue and sell to the
several underwriters named in Schedule A (the
“Underwriters”) an aggregate of [___] shares of its
Common Stock, par value $0.01 per share (the “Common
Stock”). The [___] shares of Common Stock to be sold by the
Company are collectively called the “Firm Shares”. In
addition, certain stockholders of the Company named in
Schedule B (collectively, the “Selling
Stockholders”) have severally granted to the Underwriters an
option to purchase up to an additional [___] shares of Common
Stock, with each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder’s name in
Schedule B, all as provided in Section 2. The [___]
shares to be sold by the Selling Stockholders pursuant to such
option are collectively called the “Optional Shares”.
The Firm Shares and, if and to the extent such option is exercised,
the Optional Shares are collectively called the
“Shares”. Banc of America Securities LLC
(“BAS”) and Deutsche Bank Securities Inc.
(“DB”) have agreed to act as representatives of the
several Underwriters (in such capacity, the
“Representatives”) in connection with the offering and
sale of the Shares. The terms Representatives and Underwriters
shall mean either the singular or plural as the context
requires.
The Company and
the Underwriters agree that up to 5% of the Firm Shares to be
purchased by the Underwriters (the “Directed Shares”)
shall be reserved for sale by the Underwriters to certain eligible
directors, officers and employees of the Company and persons having
business relationships with the Company (collectively, the
“DSP Participants”), as part of the distribution of the
Shares by the Underwriters (the “Directed Share
Program”) subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the NASD, Inc.
(the “NASD”) and all other applicable laws, rule and
regulations. DB, solely in its capacity as the Directed Share
Program underwriter and not otherwise (the “DSP
Underwriter”), has been selected to process the sales to the
DSP Participants under the Directed Share Program. To the extent
that such Directed Shares are not orally confirmed for purchase by
the DSP Participants by [7:30 a.m.], New York City time, on the
first business day after the date of this Agreement, such Directed
Shares may be offered to the public as set forth in the Prospectus
(as defined below).
The Company and
the Selling Stockholders hereby confirm their engagement of DB as,
and DB hereby confirms its agreement with the Company and the
Selling Stockholders to render services as, a “qualified
independent underwriter”, within the meaning of Section
(b)(15) of Rule 2720 of the NASD with respect to the offering
and sale of the Shares. DB, solely in its capacity as the qualified
independent underwriter and not otherwise, is referred to herein as
the “QIU”. DB will not receive any compensation for
acting in this capacity in connection with this offering and sale
of the Shares. The price at which the Shares will be sold to the
public shall not be higher than the maximum price recommended by
the QIU.
In connection with
the offering of the Shares by the Company and the Selling
Stockholders, the Company is undergoing a corporate reorganization
(the “Reorganization”), which will become effective
immediately prior to the Closing Date (as defined herein). In
connection with the Reorganization, the Company or one of its
Subsidiaries (as defined below) will acquire all of the outstanding
partnership interests in Western Refining Company, L.P. All
references to the Company and its Subsidiaries in this Agreement
shall be deemed to include Western Refining, Inc. and its
Subsidiaries (including Western Refining Company, L.P.),
respectively, as so reorganized. The term
“Subsidiaries” shall be deemed to include all of the
Company’s Subsidiaries (including Western Refining Company,
L.P.), as so reorganized and as set forth on Exhibit 21 to the
Registration Statement.
The Company and
each of the Selling Stockholders hereby confirm their respective
agreements with the Underwriters and the QIU as follows:
Section 1.
Representations and Warranties of the Company and the Selling
Stockholders .
A. The
Company hereby represents, warrants and covenants to each
Underwriter as follows:
(a) The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a registration statement
on Form S-1 (File No. 333-128629), which contains a form of
prospectus to be used in connection with the public offering and
sale of the Shares. Such registration statement, as amended,
including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission
under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the
“Securities Act”), including any required information
deemed to be a part thereof at the time of effectiveness pursuant
to Rule 430A under the Securities Act, is called the
“Registration Statement”. Any registration statement
filed by the Company pursuant to Rule 462(b) under the Securities
Act is called the “Rule 462(b) Registration
Statement”, and from and after the date and time of filing of
the Rule 462(b) Registration Statement, the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. Any preliminary prospectus included in the
Registration Statement is hereinafter called a “preliminary
prospectus”. The term “Prospectus” shall mean the
final prospectus relating to the Shares that is first filed
pursuant to Rule 424(b) after the effective date of the
Registration Statement (the “Effective Date”) or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Shares included in the
Registration Statement at the Effective Date. All references in
this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary
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prospectus, the
Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“EDGAR”).
(b)
Compliance with Registration Requirements. The Registration
Statement has been declared effective by the Commission under the
Securities Act. The Company has complied to the Commission’s
satisfaction with all requests of the Commission for additional or
supplemental information. No stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering have
been instituted or are pending or, to the knowledge of the Company,
are contemplated or threatened by the Commission.
Each preliminary
prospectus and the Prospectus when filed complied in all material
respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the
copy thereof delivered to the Underwriters for use in connection
with the offer and sale of the Shares. Each of the Registration
Statement and any post-effective amendment thereto, at the time it
became effective and at the date hereof, complied and will comply
in all material respects with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. The Prospectus
(including any Prospectus wrapper), as amended or supplemented, as
of its date, at the date hereof, at the time of any filing pursuant
to Rule 424(b), at the Closing Date (as defined herein) and at any
Subsequent Closing Date (as defined herein), did not and will not
contain any untrue statement of a material fact or 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. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement or any post-effective
amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by
the Representatives consists of the information described as such
in Section 8 hereof. There is no contract or other document
required to be described in the Prospectus or to be filed as
exhibits to the Registration Statement that has not been described
or filed as required.
(c)
Disclosure Package . The term “Disclosure
Package” shall mean (A) the preliminary prospectus, if
any, as amended or supplemented immediately prior to the Applicable
Time (as defined below), (B) any Issuer Free Writing
Prospectuses (as defined below) identified in Schedule C
hereto, (C) any other free writing prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part
of the Disclosure Package and (D) Schedule D hereto,
which indicates the number of Shares being sold and the price at
which the Shares will be sold to the public. The term “Issuer
Free Writing Prospectus” shall mean any “issuer free
writing prospectus,” as defined in Rule 433 of the
Securities Act relating to the Shares that (A) is required to
be filed with the Commission by the Company, (B) is a
“road show that is a written communication” within the
meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (C) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a
3
description of
the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
required to be retained in the Company’s records pursuant to
Rule 433(g). The term “Applicable Time” means the
time after execution of this Agreement when sales of the Shares are
first made. At the Applicable Time, the Closing Date and on any
Subsequent Closing Date, the Disclosure Package will not contain
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. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof. No
statement of material fact included in the Prospectus will be
omitted from the Disclosure Package available at the Applicable
Time, and no statement of material fact included in the Disclosure
Package available at the Applicable Time that is required to be
included in the Prospectus will be omitted therefrom.
(d)
Company Not Ineligible Issuer . (i) At the time of
filing the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto and
(ii) as of the date of the execution and delivery of this
Agreement (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405 of the Securities
Act).
(e)
Issuer Free Writing Prospectuses . 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 Shares
or until any earlier date on which the Company notified or notifies
the Representatives as described in Section 3(A)(d),
(i) did not, does not and will not include any information
that conflicts with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary prospectus deemed to be a
part thereof that has not been superseded or modified, and
(ii) when taken together with the preliminary prospectus
preceding or accompanying such Issuer Free Writing Prospectus, did
not, does not and will not contain any untrue statement of a
material fact or 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. The preceding sentence
does not apply to statements in or omissions from the Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(f) Bona
Fide Electronic Road Show . The Company has made available a
“bona fide electronic road show”, as defined in
Rule 433 in compliance with Rule 433(d)(8)(ii), such that
no filing of any “road show” (as defined in
Rule 433(h)) is required in connection with the offering of
the Shares.
(g)
Accuracy of Statements in Prospectus. The statements in each
of the preliminary prospectus and the Prospectus under the headings
“U.S. Federal Tax Consequences to Non-U.S.
4
Holders of
Common Stock”, “Business—Governmental
Regulation” and “Description of Capital Stock”
insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or
proceedings.
(h)
Distribution of Offering Material by the Company. The
Company has not distributed and will not distribute, prior to the
later of the last Subsequent Closing Date (as defined below) and
the completion of the Underwriters’ distribution of the
Shares, any offering material in connection with the offering and
sale of the Shares other than a preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus, the Registration
Statement or other materials, if any, permitted by the Securities
Act and the rules and regulations thereunder; provided that no such
other materials shall be distributed without the prior consent of
the Representatives.
(i) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable against the Company in
accordance with its terms.
(j)
Authorization of the Shares. The Shares to be purchased by
the Underwriters from the Company have been duly authorized for
issuance and sale and, when issued and delivered by the Company to
the Underwriters pursuant to this Agreement on the Closing Date or
any Subsequent Closing Date, will be validly issued, fully paid and
nonassessable.
(k) No
Applicable Registration or Other Similar Rights. Except as
described in the Disclosure Package and the Prospectus, there are
no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement.
(l) No
Transfer Taxes . There are no transfer taxes or other similar
fees or charges under federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the issuance
by the Company or sale by the Company of the Shares.
(m) No
Material Adverse Change. Except as otherwise disclosed in the
Disclosure Package and the Prospectus, subsequent to the respective
dates as of which information is given in the Disclosure Package
and the Prospectus: (i) there has been no material adverse
change, or any development that would reasonably be expected to
result in a material adverse change, in the financial condition, or
in the earnings, business, properties, operations or prospects,
whether or not arising from transactions in the ordinary course of
business, of the Company and its Subsidiaries, considered as one
entity (any such change is called a “Material Adverse
Change”); (ii) the Company and its Subsidiaries have not
incurred any liability or obligation, indirect, direct or
contingent, nor entered into any transaction or agreement, in each
case, that is material to the Company and its Subsidiaries,
considered as one entity; and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company
or any of its Subsidiaries on any equity interests or class of
capital stock or repurchase or redemption by the Company or any of
its Subsidiaries of any class of capital stock.
5
(n)
Independent Accountants. Ernst & Young LLP, who have
expressed their opinion with respect to the financial statements of
the Company (which term as used in this Agreement includes the
related notes thereto) filed with the Commission as a part of the
Registration Statement and included in the Disclosure Package and
the Prospectus, are independent registered public accountants with
respect to the Company as required by the Securities
Act.
(o)
Preparation of the Financial Statements. The financial
statements filed with the Commission as a part of the Registration
Statement and included in the Disclosure Package and the Prospectus
(the “Financial Statements”) present fairly in all
material respects the consolidated financial position of the
Company and its Subsidiaries as of and at the dates indicated and
the results of their operations and cash flows for the periods
specified on the basis stated therein. Such Financial Statements
comply as to form with the applicable accounting requirements of
the Securities Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other financial statements
or supporting schedules are required to be included. The financial
data set forth in each of the preliminary prospectus and the
Prospectus under the captions “Summary—Summary
Historical and Pro Forma As Adjusted Financial and Operating
Data”, “Selected Historical and Financial and Operating
Data”, “Dilution” and
“Capitalization” fairly present the information set
forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement. The
pro forma consolidated financial statements of the Company and its
Subsidiaries and the related notes thereto included in each of the
preliminary prospectus and the Prospectus in the Registration
Statement present fairly the information contained therein, have
been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have
been properly presented on the basis described therein, 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.
(p)
Organization and Good Standing of the Company and its
Subsidiaries. Each of the Company and its Subsidiaries has been
duly organized and is validly existing in good standing under the
laws of the jurisdiction of its organization and has power and
authority to own or lease, as the case may be, and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus and, in the case of the
Company, to enter into and perform its obligations under this
Agreement. Each of the Company and its Subsidiaries is duly
qualified 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 for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a material adverse effect, on the financial
condition, or on the earnings, business, properties, operations or
prospects, whether or not arising from transactions in the ordinary
course of business of the Company and its Subsidiaries, considered
as one entity (a “Material Adverse Effect”). All of the
issued and outstanding shares of capital stock or equity interests
of each Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable (except as such non-assessability
may be affected by Section 6.02 of the Texas Revised Limited
Partnership Act or Section 18-607 of the Delaware Limited
Liability Company Act) and, after giving effect to the
Reorganization, are owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim. The Company does not own or
control,
6
directly or
indirectly, any corporation, association or other entity other than
the Subsidiaries listed in Exhibit 21 to the Registration
Statement.
(q)
Capitalization and Other Capital Stock Matters. The
authorized, issued and outstanding capital stock of the Company is
as set forth in each of the Disclosure Package and the Prospectus
under the caption “Capitalization” (other than for
subsequent issuances, if any, pursuant to employee benefit plans
described in the Disclosure Package and the Prospectus or upon
exercise of outstanding options described in the Disclosure Package
and the Prospectus). The Common Stock (including the Shares)
conforms in all material respects to the description thereof
contained in the each of the Disclosure Package and the Prospectus,
as the case may be. All of the issued and outstanding shares of
Common Stock (including the shares of Common Stock owned by Selling
Stockholders) have been duly authorized and validly issued, are
fully paid and nonassessable and have been issued in compliance
with federal and state securities laws. 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 described in the Disclosure Package and the
Prospectus. 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 in each of the
Disclosure Package and the Prospectus accurately and fairly
summarizes in all material respects such plans, arrangements,
options and rights.
(r)
Listing. The Shares have been approved for listing on the
New York Stock Exchange (the “NYSE”), subject only to
official notice of issuance.
(s)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor
any of its Subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time, would be in default)
under (“Default”) its respective organizational
documents, (ii) in Default under any indenture, mortgage, loan
or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or
instrument to which the Company or such Subsidiary is a party or by
which it may be bound (including, without limitation, the Revolving
Credit Agreement, dated as of July 29, 2005, as amended, among
Western Refining Company, L.P., Bank of America and the other
parties named therein (the “Revolving Loan”), and the
Amended and Restated Term Loan Agreement, dated as of July 29,
2005, as amended, among Western Refining Company, L.P., Bank of
America and the other parties named therein (the “Term
Loan”, and collectively with the Revolving Loan, the
“Credit Agreements”)), or to which any of the property
or assets of the Company or any of its Subsidiaries is subject
(each, an “Existing Instrument”), or (iii) in
violation of any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except with respect to clauses
(ii) and (iii), for such Defaults as would not, individually
or in the aggregate, have a Material Adverse Effect. The
Company’s execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby,
by the Disclosure Package and by the Prospectus (including the
Reorganization) (i) have been duly authorized by
7
all necessary
corporate action and will not result in any Default under the
respective organizational documents of the Company or any or its
Subsidiaries, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering 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 of its Subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, except that
the distribution to the partners of Western Refining Company, L.P.
described in “Certain Relationships and Related Party
Transactions” in the preliminary prospectus and the
Prospectus will cause a Default and Debt Repayment Triggering Event
under the Term Loan, and (iii) will not result in any
violation of any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its Subsidiaries or any of its or their properties. No
consent, approval, authorization or other order of, or registration
or filing with, any court or other governmental or regulatory
authority or agency is required for the Company’s execution,
delivery and performance of this Agreement and consummation of the
transactions contemplated hereby, by the Disclosure Package and by
the Prospectus, except (A) the registration of the Shares
under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws in connection
with the purchase and distribution of the Shares by the
Underwriters, (B) such consents, approvals, authorizations,
orders, registrations or qualifications that, if not obtained or
made, would not, individually or in the aggregate, have a Material
Adverse Effect, (C) such as have been obtained or made by the
Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from the NASD and
(D) such as have been obtained under the laws and regulations
of jurisdictions outside the United States in which Directed Shares
are offered. 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.
(t) No
Material Actions or Proceedings. There are no legal or
governmental actions, suits or proceedings pending or, to the
Company’s knowledge, threatened (i) against or affecting
the Company or any of its Subsidiaries, (ii) which has as the
subject thereof any officer or director of, or property owned or
leased by, the Company or any of its Subsidiaries or
(iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely
to the Company or such Subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would reasonably be
expected to have a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated by this
Agreement.
(u) Labor
Matters. No labor problem or dispute with the employees of the
Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is threatened or imminent, which would have a Material
Adverse Effect.
(v)
Intellectual Property Rights. The Company and its
Subsidiaries own, possess, license or have other rights to use, all
material patents, patent applications, trade and service
8
marks, trade
and service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the their respective
businesses as now conducted, and the Company has no reason to
believe that the conduct of it or its Subsidiaries’
respective businesses will conflict in any material respect with,
and has not received any notice of any claim of conflict with, any
such rights of other parties.
(w) All
Necessary Permits, etc. The Company and each Subsidiary possess
such valid and current licenses, certificates, authorizations or
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective
businesses as described in the Disclosure Package and the
Prospectus, and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such license,
certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(x) Title
to Properties. The Company and each of its Subsidiaries has
good and marketable title to all of the properties and assets
reflected as owned in the Financial Statements, in each case free
and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such
(i) that do not materially interfere with the use made or
proposed to be made of such property by the Company or such
Subsidiary, (ii) granted pursuant to the Credit Agreements or
documents executed in connection therewith or (iii) that would
not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(y) Tax
Law Compliance. The Company and its consolidated Subsidiaries
have filed all necessary federal, state, local and foreign income
and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable,
any related or similar assessment, fine or penalty levied against
any of them, except for any taxes, assessments, fines or penalties
as may be being contested in good faith and by appropriate
proceedings. The Company has made appropriate provisions in the
applicable Financial Statements in respect of all federal, state,
local and foreign income and franchise taxes for all current or
prior periods as to which the tax liability of the Company or any
of its consolidated Subsidiaries has not been finally
determined.
(z)
Company Not an “Investment Company”. The Company
is not, and after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof as described in
each of the preliminary prospectus and the Prospectus, will not be,
required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended
and the rules and regulations of the Commission thereunder (the
“Investment Company Act”) and will conduct its business
in a manner so that it will not become subject to the Investment
Company Act.
(aa)
Insurance. Each of the Company and its Subsidiaries have
insurance coverage in such amounts and with such deductibles and
covering such risks that the Company and its Subsidiaries deem to
be adequate and customary for the conduct of their respective
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
9
earthquakes.
All policies of insurance and fidelity or surety bonds insuring the
Company or any of its Subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and
effect. The Company and its Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects;
and there are no material claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a
reservation of rights clause; and neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or
applied for. The Company has no 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 as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not
have a Material Adverse Effect.
(bb) No
Restrictions on Dividends . No Subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends or distributions to the Company, from making any other
distribution on such Subsidiary’s equity interests, from
repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in or contemplated
by the Disclosure Package and the Prospectus.
(cc) No
Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to
or that could be reasonably expected to cause or result in
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(dd)
Related-Party Transactions. Except as described in the
preliminary prospectus and the Prospectus, no relationship exists
between or among the Company or any Subsidiary, on the one hand,
and the directors, officers, stockholders, customers or suppliers
of the Company and its Subsidiaries, on the other hand, that is
required to be described in the preliminary prospectus and the
Prospectus that is not so described.
(ee)
Internal Controls and Procedures . The Company maintains
(i) effective internal control over financial reporting as
defined in Rule 13a-15 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and (ii) a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for its 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 existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(ff) No
Material Weakness in Internal Controls. Except as disclosed in
the Disclosure Package and the Prospectus, since the date of the
Company’s most recent audited balance sheet, there has been
(i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(ii) no significant changes 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.
10
(gg) No
Unlawful Contributions or Other Payments. 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 aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of 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, its Subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
(hh) No
Conflict with Money Laundering Laws . 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, the money laundering statutes of
all applicable 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 or any of its
Subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
(ii)
Compliance with Environmental Laws. Except as otherwise
disclosed in the Disclosure Package and the Prospectus,
(i) neither the Company nor any of its Subsidiaries is in
violation of any federal, state, local or foreign law, regulation,
order, permit or other requirement 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, 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 Environment 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, except as would not, individually or in the
aggregate, have a Material Adverse Effect; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources
damages, property damages,
11
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 knowledge,
threatened against the Company or any of its Subsidiaries or any
person or entity whose liability for any Environmental Claim that
the Company or any of its Subsidiaries has retained or assumed
either contractually or by operation of law, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
(iii) to the Company’s knowledge, there are no past,
present or anticipated future 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 would be expected to
result in a violation of any Environmental Law, require
expenditures to be incurred pursuant to 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, except as would not, individually or in the
aggregate, have a Material Adverse Effect; and (iv) neither
the Company nor any of its Subsidiaries is subject to any pending
or threatened proceeding under Environmental Law to which a
governmental authority is a party and which is reasonably likely to
result in monetary sanctions of $100,000 or more.
(jj)
Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in
the course of which it identifies and evaluates 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, have a Material
Adverse Effect.
(kk)
ERISA Compliance. The Company has fulfilled its obligations,
if any, under the minimum funding rules of Section 302 of the
United States Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), and the regulations and published
interpretations thereunder, with respect to a Plan, and has
complied in all material respects with applicable laws relating to
the employment, compensation and employee benefits of employees of
the Company or its subsidiaries. For purposes of the preceding
sentence, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) subject to Title IV of ERISA
that the Company or any of its Subsidiaries has made contributions
to, maintained, or administered.
(ll)
Brokers. There is no broker, finder or other party that is
entitled to receive from the Company any brokerage or
finder’s fee or other similar payment as a result of any
transactions contemplated by this Agreement.
(mm)
Directed Share Program. (i) The Registration Statement,
the Prospectus, the Disclosure Package and any preliminary
prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus, the Disclosure
Package or any preliminary prospectus, as amended or
12
supplemented,
if applicable, are distributed in connection with the Directed
Share Program, and (ii) no authorization, approval, consent,
license, order registration or qualification of or with any
government, governmental instrumentality or court, other than such
as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares
are offered outside the United States. The Company has not offered,
or caused the Underwriters to offer, any Shares to any person
pursuant to the Directed Share Program with the intent to
unlawfully influence (i) a customer or supplier of the Company
to alter the customer’s or supplier’s level or type of
business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the
Company or its products.
(nn)
Statistical and Market Related Data. Nothing has come to the
attention of the Company that has caused the Company to believe
that the statistical and market-related data included in each of
the Disclosure Package and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
Any certificate
signed by an officer of the Company and delivered to the
Representatives 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 set forth therein.
B.
Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents, warrants and covenants to each
Underwriter as follows:
(a) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by or on behalf of, and is a
valid and binding agreement of, such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with its
terms.
(b) The
Custody Agreement and Power of Attorney. Certificates in
negotiable form representing all of the Shares to be sold by such
Selling Stockholder hereunder have been placed in custody under a
Custody Agreement, in the form heretofore furnished to you (the
“Custody Agreement”), duly executed and delivered by
such Selling Stockholder to American Stock Transfer & Trust
Company, as custodian (the “Custodian”), and such
Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the “Power
of Attorney”), appointing the persons indicated in
Schedule E hereto, and each of them, as such Selling
Stockholder’s attorneys-in-fact (the
“Attorneys-in-Fact”) with authority to execute and
deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement. Each of
the Custody Agreement and the Power of Attorney has been duly
authorized, executed and delivered by such Selling
Stockholder.
(c)
Obligations of the Selling Stockholder. The Shares
represented by the certificates held in custody for such Selling
Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by
such Selling Stockholder for such custody, and the appointment by
such Selling Stockholder of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable; the obligations of the
Selling Stockholders
13
hereunder shall
not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of
an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case
of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other
event; if any individual Selling Stockholder or any such executor
or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Stockholders in accordance with the terms and conditions of
this Agreement and of the Custody Agreements; and actions taken by
the Attorneys-in-Fact pursuant to the Powers of Attorney shall be
as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event.
(d) Title
to Shares to be Sold; All Authorizations Obtained. Such Selling
Stockholder is, on the Closing Date and on any Subsequent Closing
Date, the record and beneficial owner of the Shares to be sold by
the Selling Stockholder hereunder free and clear of all liens,
encumbrances, equities and claims and has duly indorsed such Shares
in blank, and, assuming that the Underwriters purchase such Shares
without notice of any adverse claim (within the meaning of
Section 8-102(a)(1) of the New York Uniform Commercial Code),
upon sale and delivery of, and payment for, such Shares, as
provided herein, the Underwriters will own the Shares, free and
clear of all liens, encumbrances, equities and claims whatsoever.
Such Selling Stockholder has the legal right and power, and all
authorizations and approvals required by law and under its
partnership agreement or other organizational documents to enter
into this Agreement and the Custody Agreement and its Power of
Attorney, to sell, transfer and deliver all of the Shares which may
be sold by such Selling Stockholder pursuant to this Agreement and
to comply with its other obligations hereunder and
thereunder.
(e)
Delivery of the Shares to be Sold. Delivery of the Shares
which are sold by such Selling Stockholder pursuant to this
Agreement will pass good and valid title to such Shares, free and
clear of any security interest, mortgage, pledge, lien, encumbrance
or other claim.
(f)
Non-Contravention; No Further Authorizations or Approvals
Required. The execution and delivery by such Selling
Stockholder of, and the performance by such Selling Stockholder of
its obligations under, this Agreement, the Custody Agreement and
the Power of Attorney (i) will not conflict with or constitute
a breach of, or Default under, any other agreement or instrument to
which such Selling Stockholder is a party or by which it is bound
or under which it is entitled to any right or benefit, and
(ii) will not result in any violation of any statute, law,
regulation, order or decree applicable to such Selling Stockholder
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over such
Selling Stockholder or its properties. No consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental authority or agency, is required
for the consummation by such Selling Stockholder of the
transactions contemplated in this Agreement, except such as have
been obtained or made and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and
from the NASD.
14
(g) No
Registration or Other Similar Rights. Such Selling Stockholder
does not have any registration or other similar rights to have any
equity or debt securities registered for sale by the Company under
the Registration Statement or included in the offering contemplated
by this Agreement, except for such rights as are described in the
Prospectus under “Shares Eligible for Future Sale” and
“Certain Relationships and Related Party
Transactions–Registration Rights Agreement”.
(h) No
Further Consents, etc. No consent, approval or waiver is
required under any instrument or agreement to which such Selling
Stockholder is a party or by which it is bound or under which it is
entitled to any right or benefit, in connection with the offering,
sale or purchase by the Underwriters of any of the Shares which may
be sold by such Selling Stockholder under this Agreement or the
consummation by such Selling Stockholder of any of the other
transactions contemplated hereby.
(i)
Disclosure Made by Such Selling Stockholder in the
Prospectus. All information furnished by or on behalf of such
Selling Stockholder in writing expressly for use in the
Registration Statement, the Prospectus, the Disclosure Package or
any free writing prospectus as defined in Rule 405 of the
Securities Act (each, a “Free Writing Prospectus”) or
any amendment or supplement thereto used by the Company or any
Underwriter, as the case may be, as of the Applicable Time, and on
the Closing Date, and on any Subsequent Closing Date will be, true,
correct and complete in all material respects, and as of the
Applicable Time, and on the Closing Date and any Subsequent Closing
Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make such information
not misleading. In addition, such Selling Stockholder confirms as
accurate the number of shares of Common Stock set forth opposite
such Selling Stockholder’s name in each of the preliminary
prospectus and the Prospectus under the caption “Principal
and Selling Stockholders” (both prior to and after giving
effect to the sale of the Shares).
(j)
Disclosure Package. At the Applicable Time, the Closing Date
and on any Subsequent Closing Date, the Disclosure Package will not
contain 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. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof. No
statement of material fact included in the Prospectus will be
omitted from the Disclosure Package available at the Applicable
Time, and no statement of material fact included in the Disclosure
Package available at the Applicable Time that is required to be
included in the Prospectus will be omitted therefrom.
(k)
Issuer Free Writing Prospectuses . Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any preliminary prospectus deemed to be a part thereof
that has not been superseded or modified. Each Issuer Free Writing
Prospectus, when taken together with the preliminary prospectus
preceding or accompanying such Issuer Free Writing Prospectus, did
not, does not and will not
15
contain any
untrue statement of a material fact or 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. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and
in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
(l) No
Free Writing Prospectuses . Such Selling Stockholder has not
prepared or had prepared on its behalf or used or referred to, and
will not prepare or have prepared on its behalf or use or refer to,
any Free Writing Prospectus, and has not distributed and will not
distribute any written materials in connection with the offer or
sale of the Securities.
(m) No
Price Stabilization or Manipulation. Such Selling Stockholder
has not taken and will not take, directly or indirectly, any action
designed to or that could be reasonably expected to cause or result
in stabilization or manipulation of the price of the Common Stock
to facilitate the sale or resale of the Shares.
(n)
Registration Statement and Prospectus . Each of the
Registration Statement and any post-effective amendment thereto, at
the time it became effective and at the date hereof, did not and
will not contain any 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. The Prospectus
(including any Prospectus wrapper), as amended or supplemented, as
of its date, at the date hereof, at the time of any filing pursuant
to Rule 424(b), at the Closing Date and at any Subsequent
Closing Date, did not and will not contain any untrue statement of
a material fact or 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. The representations and
warranties set forth in the two immediately preceding sentences do
not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by the
Representatives expressly for use therein, it being understood and
agreed that the only such information furnished by the
Representatives consists of the information described as such in
Section 8 hereof. Such Selling Stockholder is not prompted to
sell shares of Common Stock by any information concerning the
Company which is not set forth in the Registration Statement and
the Disclosure Package.
Any certificate
signed by or on behalf of any Selling Stockholder and delivered to
the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling
Stockholder to each Underwriter as to the matters covered
thereby.
Section 2. Purchase, Sale
and Delivery of the Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company
agrees to issue and sell to the several Underwriters an aggregate
of [___] Firm Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase
16
from the
Company the respective number of Firm Shares set forth opposite
their names on Schedule A. The purchase price per Firm Common
Share to be paid by the several Underwriters to the Company shall
be $[ ] per share.
(b) The
Closing Date. Delivery of certificates for the Firm Shares to
be purchased by the Underwriters and payment therefor shall be made
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue,
New York, New York 10017 (or such other place as may be agreed to
by the Company and the Representatives) at 9:00 a.m., New York City
time, on [___], or such other time and date not later than 1:30
p.m., New York City time, on [___], as the Representatives shall
designate by notice to the Company (the time and date of such
closing are called the “Closing Date”).
(c) The
Optional Shares; the Subsequent Closing Date. In addition, on
the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein
set forth, the Selling Stockholders hereby grant an option to the
several Underwriters to purchase, severally and not jointly, up to
an aggregate of [___] Optional Shares from the Selling Stockholders
at the purchase price per share to be paid by the Underwriters for
the Firm Shares. The option granted hereunder may be exercised at
any time and from time to time upon notice by the Representatives
to the Company and the Selling Stockholders, which notice may be
given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate number of
Optional Shares as to which the Underwriters are exercising the
option, (ii) the names and denominations in which the
certificates for the Optional Shares are to be registered and
(iii) the time, date and place at which such certificates will
be delivered (which time and date may be simultaneous with, but not
earlier than, the Closing Date; and in such case the term
“Closing Date” shall refer to the time and date of
delivery of certificates for the Firm Shares and the Optional
Shares). Each time and date of delivery, if subsequent to the
Closing Date, is called a “Subsequent Closing Date” and
shall be determined by the Representatives and shall not be earlier
than three nor later than five full business days after delivery of
such notice of exercise. If any Optional Shares are to be
purchased, (a) each Underwriter agrees, severally and not
jointly, to purchase the number of Optional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives
may determine) that bears the same proportion to the total number
of Optional Shares to be purchased as the number of Firm Shares set
forth on Schedule A opposite the name of such Underwriter
bears to the total number of Firm Shares and (b) each Selling
Stockholder agrees, severally and not jointly, to sell the number
of Optional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) set forth
in Schedule B opposite the name of such Selling Stockholder,
with the Shares held by WRC Refining Company being sold first
before any Shares held by RHC Holdings, L.P. are sold.
(d)
Public Offering of the Shares. The Representatives hereby
advise the Company and the Selling Stockholders that the
Underwriters intend to offer for sale to the public, as described
in the Prospectus, their respective portions of the Shares as soon
after this Agreement has been executed and the Registration
Statement has been declared effective as the Representatives, in
their sole judgment, have determined is advisable and
practicable.
(e)
Payment for the Shares. Payment for the Shares to be sold by
the Company shall be made on the Closing Date (and, if applicable,
on any Subsequent Closing Date) by wire
17
transfer of
immediately available funds to the order of the Company or to the
order of such other person as the Company shall designate in
writing. Payment for the Shares to be sold by the Selling
Stockholders shall be made on the Closing Date (and, if applicable,
on any Subsequent Closing Date) by wire transfer of immediately
available funds to the order of the Custodian.
It is understood
that the Representatives have been authorized, for their own
account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price
for, the Firm Shares and any Optional Shares the Underwriters have
agreed to purchase. BAS or DB, individually and not as
Representatives of the Underwriters, may (but shall not be
obligated to) make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by the
Representatives by the Closing Date or any Subsequent Closing Date,
as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
Each Selling
Stockholder hereby agrees that (i) it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any,
payable upon the sale or delivery of the Shares to be sold by such
Selling Stockholder to the several Underwriters, or otherwise in
connection with the performance of such Selling Stockholder’s
obligations hereunder and (ii) the Custodian is authorized to
deduct for such payment any such amounts from the proceeds to such
Selling Stockholder hereunder and to hold such amounts for the
account of such Selling Stockholder with the Custodian under the
Custody Agreement.
(f)
Delivery of the Shares. Delivery of the Firm Shares and the
Optional Shares shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise
instruct. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(g)
Delivery of Prospectus to the Underwriters. Not later than
10:00 a.m. on the second business day following the date that
the Shares are first released by the Underwriters for sale to the
public, the Company shall deliver or cause to be delivered, copies
of the Prospectus in such quantities and at such places as the
Representatives shall reasonably request.
A.
Covenants of the Company . The Company covenants and agrees
with each Underwriter as follows:
(a)
Representatives’ Review of Proposed Amendments and
Supplements. During the period beginning on the Applicable Time
and ending on the later of the Closing Date or such date, as in the
opinion of counsel for the Underwriters, the Prospectus is no
longer required by law to be delivered in connection with sales by
an Underwriter or dealer, or would be required to be delivered but
for Rule 172 (the “Prospectus Delivery Period”),
prior to amending or supplementing the Registration Statement, the
Disclosure Package or the Prospectus, the Company shall furnish to
the Representatives for review a copy of each such proposed
amendment or supplement, and the Company shall not file or use any
such proposed amendment or supplement to which the Representatives
reasonably object.
18
(b)
Securities Act Compliance. After the date of this Agreement,
the Company shall promptly advise the Representatives in writing
(i) when the Registration Statement, if not effective on the
date hereof, shall have become effective, (ii) of the receipt
of any comments of, or requests for additional or supplemental
information from, the Commission, (iii) of the filing of any
post-effective amendment to the Registration Statement or any
amendment or supplement to any preliminary prospectus or the
Prospectus, (iv) of the date that any post-effective amendment
to the Registration Statement becomes effective and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order or
notice preventing or suspending the use of the Registration
Statement, any preliminary prospectus or the Prospectus, or of any
proceedings to remove, suspend or terminate from listing or
qu
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