ALLIED WASTE INDUSTRIES,
INC.
Common Stock
($0.01 Par Value)
UBS Securities
LLC
299 Park Avenue
New York, New York 10171
Apollo
Investment Fund III, L.P., Apollo Investment Fund IV, L.P., Apollo
Overseas Partners III, L.P., Apollo Overseas Partners IV, L.P.,
Apollo (U.K.) Partners III, L.P., AIF III/AWI/RR LLC and Apollo/AW
LLC (each, a “ Selling Stockholder ” and
together, the “ Selling Stockholders ”)
propose to sell to UBS Securities LLC (the “
Underwriter ”) an aggregate of 33,000,000
shares (the “ Shares ”) of common stock,
$0.01 par value (the “ Common Stock ”),
of Allied Waste Industries, Inc., a Delaware corporation (the
“ Company ”). The number of Shares to be
sold by each Selling Stockholder is the number of Shares set forth
opposite the name of such Selling Stockholder in
Schedule B annexed hereto. The Shares are described in
the Prospectus which is referred to below.
The
Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “ Act ”),
with the Securities and Exchange Commission (the “
Commission ”) a registration statement on Form
S-3, as amended (File No. 333-135092), including a prospectus,
relating to the Shares, which incorporates by reference documents
which the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the “
Exchange Act ”). The Company has furnished to
you, for use by the Underwriter and by dealers in connection with
the offering of the Shares, copies of the basic prospectus on file
when marketing efforts for the Shares began (the “
Basic Prospectus ”).
Except
where the context otherwise requires, “ Registration
Statement ,” as used herein, means the registration
statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of
the Act, as such section applies to the Underwriter (the “
Effective Time ”), including (i) all
documents filed as a part thereof or incorporated or deemed to be
incorporated by reference therein, and (ii) any information
contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent
such information is deemed, pursuant to Rule 430A,
Rule 430B or Rule 430C under the Act, to be part of the
registration statement at the Effective Time.
Except
where the context otherwise requires, “Prospectus
Supplement,” as used herein, means the final prospectus
supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the
second business day after the date hereof (or such earlier time as
may be required under
the Act), in
the form furnished by the Company to you for use by the Underwriter
and by dealers in connection with the offering of the
Shares.
Except
where the context otherwise requires, “Prospectus,” as
used herein, means the Prospectus Supplement together with the
Basic Prospectus attached to or used with the Prospectus
Supplement.
“
Permitted Free Writing Prospectuses ,” as used
herein, means the documents listed on Schedule C
attached hereto.
“
Disclosure Package ,” as used herein, means the
Basic Prospectus, together with any combination of one or more of
the Permitted Free Writing Prospectuses, if any.
“
Applicable Time ,” as used herein, means
11:00 P.M., New York City time, on November 16,
2006.
Any
reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “
Incorporated Documents ”), including, unless
the context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “ amend ,” “
amendment ” or “ supplement
” with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Basic Prospectus, the Prospectus Supplement, the
Prospectus or such Permitted Free Writing Prospectus, as the case
may be, and deemed to be incorporated therein by
reference.
As
used herein, “ business day ” shall mean
a day on which the New York Stock Exchange (“
NYSE ”) is open for trading.
1. Agreements to Sell and Purchase.
On
the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and
conditions contained herein, each of the Selling Stockholders
agrees to sell, severally and not jointly, to the Underwriter, and
the Underwriter agrees to purchase from each Selling Stockholder,
the number of Shares to be sold by such Selling Stockholder as set
forth opposite the name of such Selling Stockholder on
Schedule B annexed hereto, at a purchase price of
$12.70 per share. The Company is advised that the Underwriter
intends (i) to make a public offering of the Shares as soon
after the date hereof as in your judgment is advisable and
(ii) initially to offer the Shares upon the terms set forth in
the Prospectus. You may from time to time increase or decrease the
public offering price after the initial public offering to such
extent as you may determine.
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(a) Delivery
of the documents described in Section 9 hereof with respect to
the purchase of the Shares shall be made at the offices of Latham
& Watkins LLP, 885 Third Avenue, New York, New York 10022 or
such other location as may be mutually acceptable, at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of
the Shares.
(b) Payment
of the purchase price for the Shares shall be made to each Selling
Stockholder by Federal Funds wire transfer, against delivery of the
certificates for the Shares to you through the facilities of The
Depository Trust Company (“ DTC ”) for
the account of the Underwriter. Such delivery and payment shall be
made at 9:00 A.M., New York City time, on November 22, 2006
(or at such other time on the same date or such other date as
agreed upon by you and the Selling Stockholders in writing or
unless postponed in accordance with the provisions of
Section 10 hereof). The time at which such delivery and
payment are to be made is hereinafter sometimes called “
the time of purchase .” Electronic transfer of
the Shares shall be made to you at the time of purchase in such
names and in such denominations as you shall specify.
3. Agreements of the Company.
The
Company hereby agrees with the Underwriter and each of the Selling
Stockholders as follows:
(a) To
file the Prospectus Supplement pursuant to Rule 424(b) under the
Act not later than the Commission’s close of business on the
second business day after the date hereof (or such earlier time as
may be required under the Act), in the form furnished by the
Company to you for use by the Underwriter and by dealers in
connection with the offering of the Shares.
(b) To
advise the Underwriter promptly and, if requested by the
Underwriter, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order
suspending the qualification or exemption from qualification of the
Shares for offering or sale in any jurisdiction designated by the
Underwriter pursuant to Section 3(h) hereof, or the initiation of
any proceeding by any state securities commission or any other
federal or state regulatory authority for such purpose, and
(ii) of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, which
event makes any statement of a material fact made in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus untrue or that requires any
additions to or changes in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in order to make the statements therein not misleading. The Company
shall use its best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws and, if at any
time any state securities commission or other federal or state
regulatory authority shall issue an order
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suspending the
qualification or exemption of the Shares under any state securities
or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible
time.
(c) To
furnish the Underwriter, and those persons identified by the
Underwriter to the Company, as many copies of the Prospectus (or of
the Prospectus as amended or supplemented if the Company shall have
made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriter may from time to
time reasonably request for the time period specified in
Section 3(f); in case the Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under
the Act or any similar rule), in connection with the sale of the
Shares, a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act, or after the time a post-effective
amendment to the Registration Statement is required pursuant to
Item 512(a) of Regulation S-K under the Act, the Company will
prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act. The Company consents to the use
of the Prospectus, and any amendments and supplements thereto
required pursuant hereto, by the Underwriter in connection with the
offering and sale of the Shares.
(d) If
it is necessary for any post-effective amendment to the
Registration Statement to be declared effective before the offering
of the Shares may commence, the Company will endeavor to cause such
post-effective amendment to be declared effective as soon as
possible and the Company will advise you promptly and, if requested
by you, will confirm such advice in writing, (i) when such
post-effective amendment to the Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when
the Prospectus is filed with the Commission pursuant to Rule 424(b)
under the Act (which the Company agrees to file in a timely manner
in accordance with such Rules).
(e) To
advise you promptly and, if requested by you, to confirm such
advice in writing, of any request by the Commission for amendments
or supplements to the Registration Statement, the Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as
possible.
(f) During
such period as a prospectus is required to be delivered under the
Act (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with the offering
and sale of the Shares by the Underwriter, (i) to advise you
promptly, and if requested by you, to confirm such advice in
writing, of any proposal to amend or supplement the Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus, including by filing any documents that
would be incorporated therein by reference, and to provide you and
Underwriter’s counsel copies of any such documents for review
and comment a reasonable amount of
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time prior to
any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing and (ii) to
prepare promptly upon your reasonable request any amendment or
supplement to the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus which in the
reasonable opinion of the counsel for the Underwriter is believed
to be necessary under the Act.
(g) To
advise you promptly, during the period referred to in Section 3(f)
above, if any event shall occur or condition shall exist as a
result of which, it becomes necessary to amend or supplement the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or, if it is necessary to amend or supplement
the Registration Statement, the Basic Prospectus, the Prospectus or
any Permitted Free Writing Prospectus to comply with the Act, and
forthwith to prepare and file with the Commission an appropriate
amendment or supplement to such Registration Statement, Basic
Prospectus, Prospectus or Permitted Free Writing Prospectus so that
the statements therein, as so amended or supplemented, will not, in
the light of the circumstances when it is so delivered, be
misleading, or so that such Registration Statement, Basic
Prospectus or Prospectus will comply with applicable law, and to
furnish to the Underwriter and such other persons as the
Underwriter may designate such number of copies thereof as the
Underwriter may reasonably request.
(h) Prior
to the sale of the Shares as contemplated hereby, to cooperate with
the Underwriter and counsel to the Underwriter in connection with
the registration or qualification of the Shares for offer and sale
to the Underwriter under the securities or Blue Sky laws of such
jurisdictions as the Underwriter may request and to continue such
registration or qualification in effect so long as required and to
file such consents to service of process or other documents as may
be necessary in order to effect such registration or qualification;
provided , however , that the Company shall not be
required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified
or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and
transactions relating to the offering and sale of the Shares, in
any jurisdiction in which it is not now so subject.
(i) Subject
to Section 3(f) hereof, to file promptly all reports and any
definitive proxy or information statement required to be filed by
the Company with the Commission in order to comply with the
Exchange Act for so long as a prospectus is required by the Act to
be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares.
(j) If
necessary or appropriate, to file a registration statement pursuant
to Rule 462(b) under the Act.
(k) To
pay the fees applicable to the Registration Statement in connection
with the offering of the Shares within the time required by
Rule 456 under the Act (without reliance on subsection
(b)(1)(i) thereof) and in compliance with Rule 456(r) under the
Act.
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(l) To
make generally available to its security holders, and to deliver to
you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period.
(m) To
furnish to its shareholders as soon as practicable after the end of
each fiscal year an annual report (including a consolidated balance
sheet and statements of income, shareholders’ equity and cash
flow of the Company and its subsidiaries for such fiscal year,
accompanied by a copy of the certificate or report thereon of
nationally recognized independent certified public
accountants).
(n) If
requested by you, to furnish to you one copy of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein).
(o) To
the extent not otherwise available on EDGAR (as defined in
Regulation S-T), to furnish to you promptly (i) for a
period of five years from the date of this Agreement
(x) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (y) copies of all annual,
quarterly and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission and (z) copies of documents or
reports filed with any national securities exchange on which any
class of securities of the Company is listed and (ii) for the
period referenced in Section 3(f) above, such other information as
you may reasonably request regarding the Company or its
subsidiaries.
(p) To
comply with Rule 433(g) under the Act.
(q) Not
to sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock
or any other securities of the Company that are substantially
similar to Common Stock, or file or cause to become effective a
registration statement under the Act relating to the offer and sale
of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or other rights to
purchase Common Stock or any other securities of the Company that
are substantially similar to Common Stock for a period of
60 days after the date hereof (the “ Lock-Up
Period ”), without the prior written consent of the
Underwriter, except for (i) the registration of the offer and
sale of the Shares as contemplated by this Agreement,
(ii) issuances of Common Stock upon (x) the exercise of
outstanding options or warrants or pursuant to existing
compensation plans, in each case, as described in the Registration
Statement (excluding the exhibits thereto), the Basic Prospectus
and the Prospectus and (y) the optional conversion by a holder
of Series D senior mandatory convertible preferred stock or
4-1/4% senior subordinated convertible debentures due 2034,
(iii) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option plans
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described in
the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus, (iv) issuances of Common
Stock to non-employee directors in an aggregate amount not to
exceed $1,000,000 for all such issuances pursuant to this clause
(iv), so long as such non-employee director shall be restricted
from transferring any shares of such Common Stock until the
expiration of the 60-day period described in this paragraph, and
(v) any issuance of Common Stock in connection with a bona
fide acquisition of assets or an entity, in each case, useful in
the business of the Company and its subsidiaries, not to exceed
$60 million in the aggregate (valued at the time of issuance)
for all such issuances pursuant to this clause (v), so long as any
transferee or recipient of such shares of Common Stock shall be
restricted from transferring any shares of such Common Stock until
the expiration of the 60-day period described in this
paragraph.
(r) To
use its best efforts to cause the Shares to be listed on the
NYSE.
(s) To
maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Common
Stock.
(t) Not,
at any time at or after the execution of this Agreement, to offer
or sell any Shares by means of any “prospectus” (within
the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the
Prospectus.
(u) To
use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior
to the time of purchase and to satisfy all conditions precedent to
the delivery of the Shares.
4. Agreements of the Selling Stockholders.
Each Selling
Stockholder, severally and not jointly, hereby agrees with the
Underwriter and the Company as follows:
(a) Not,
at any time at or after the execution of this Agreement, to offer
or sell any Shares by means of any “prospectus” (within
the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the
Prospectus.
(b) To
advise you promptly, and if requested by you, confirm such advice
in writing, so long as a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, of any change in the information in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus relating to such Selling
Stockholder.
(c) To
pay or cause to be paid all taxes, if any, on the transfer and sale
of the Shares being sold by such Selling Stockholder;
provided that in connection with the payment of New York
State stock transfer tax, the Underwriter agrees to make such tax
payment on behalf of such Selling Stockholder, and such Selling
Stockholder agrees to
7
promptly
reimburse the Underwriter for any portion of such tax payment not
subsequently rebated to the Underwriter, plus any associated
carrying costs thereof (including, but not limited to, any tax
liabilities of the Underwriter resulting from such tax payment or
the reimbursement thereof by such Selling Stockholder).
(d) Prior
to or concurrently with the execution and delivery of this
Agreement, to execute and deliver to the Underwriter a lock-up
agreement (a “ Lock-Up Agreement ”), in
the form set forth as Exhibit A hereto.
5. Representations, Warranties and Agreements of the
Company.
As
of the date hereof, the Company represents and warrants to, and
agrees with, the Underwriter and the Selling Stockholders
that:
(a) The
Registration Statement has heretofore become effective under the
Act; the Registration Statement constitutes an “automatic
shelf registration statement” (as defined in Rule 405 under
the Act), and, as of the determination date applicable to the
Registration Statement (and any amendment thereof) and the offering
contemplated hereby, the Company is a “well-known seasoned
issuer” as defined in Rule 405 under the Act; no stop
order of the Commission preventing or suspending the use of the
Basic Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge after due inquiry, are threatened by the
Commission.
(b) The
Disclosure Package, as of the Applicable Time did not, and as of
the time of purchase will not, contain an 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; each of the Prospectus
Supplement and the Prospectus, as amended and supplemented, as of
the date thereof and as of the time of purchase, will not contain
an 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; each Permitted Free Writing Prospectus does not
conflict with the information contained in the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus; and each Permitted Free Writing Prospectus, together
with the Prospectus, as of the date thereof did not, and as of the
time of purchase will not, contain an 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; provided ,
however , that the representations and warranties set forth
in this paragraph shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use
therein. No statement of a material fact included in the Prospectus
shall have been omitted from the Disclosure Package and no
statement of a material fact included in the Disclosure Package
shall be omitted from the Prospectus.
8
(c) The
Registration Statement and the Basic Prospectus conform, and the
Prospectus Supplement, the Prospectus and any amendments to the
Registration Statement, the Basic Prospectus or the Prospectus will
conform, in all material respects with the requirements of the Act
and the rules and regulations of the Commission thereunder; the
Registration Statement, as of the Effective Time, and as amended or
supplemented as of the time of the filing of any amendment or
supplement thereto, did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Basic Prospectus, as of the time of the
filing thereof, and as amended or supplemented as of the time of
the filing of any amendment or supplement thereto, did not and will
not contain an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statement therein,
in the light of the circumstances under which they were made, not
misleading; provided , however , that the
representations and warranties set forth in this paragraph shall
not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
the Underwriter expressly for use therein.
(d) Prior
to the execution of this Agreement, the Company has not, directly
or indirectly, offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Basic Prospectuses and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rule 163 or with Rules 164 and
433 under the Act; assuming that such Permitted Free Writing
Prospectus is so sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing
Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed with the Commission), the sending or giving, by the
Underwriter, of any Permitted Free Writing Prospectus will satisfy
the provisions of Rule 164 or Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are
satisfied, and the Basic Prospectus, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor
the Underwriter is disqualified, by reason of subsection
(f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Shares, “free
writing prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; and the Company
is not an “ineligible issuer” (as defined in
Rule 405 under the Act) as of the eligibility determination
date for purposes of Rules 164 and 433 under the Act with
respect to the offering of the Shares contemplated by the
Registration Statement.
(e) Each
of the Company and its subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any, and to own, lease
and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to
9
do business in
each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole (a “ Material Adverse
Effect ”).
(f) All
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights.
(g) The
entities listed on Schedule D hereto are the only
subsidiaries, direct or indirect, of the Company. All of the
outstanding shares of capital stock of each of the subsidiaries of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a “ Lien
”), except for (i) Liens described in the Registration
Statement, the Basic Prospectus, the Prospectus and any Permitted
Free Writing Prospectus and (ii) such other Liens which could not
reasonably be expected to have a Material Adverse
Effect.
(h) This Agreement
has been duly authorized, executed and delivered by the
Company.
(i) The
Shares to be sold by the Selling Stockholders have been duly and
validly authorized and issued and are fully paid, non-assessable
and free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights. The capital
stock of the Company, including the Shares, will conform in all
material respects to the description thereof contained or
incorporated by reference in the Registration Statement, the Basic
Prospectus, the Prospectus and any Permitted Free Writing
Prospectus.
(j) Neither
the Company nor any of its subsidiaries is (x) in violation of
its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, which violation
or default, in the case of this clause (y), could reasonably be
expected to have a Material Adverse Effect.
(k) The
execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all provisions hereof, the
sale of the Shares to be sold by the Selling Stockholders pursuant
hereto and the consummation of the transactions contemplated hereby
will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental
body or agency (other than registration of the Shares under the
Act, which has been or will be effected, and except such as may be
required under the securities or Blue Sky laws of the various
states or under the rules and regulations of the National
Association of Securities Dealers, Inc.
10
(“
NASD ”)), (ii) conflict with or constitute
a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries,
(iii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, which violation or default could reasonably be expected to
have a Material Adverse Effect, (iv) violate or conflict with
any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their
respective property, which violation or conflict could reasonably
be expected to have a Material Adverse Effect, (v) result in
the imposition or creation of (or the obligation to create or
impose) a Lien under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound which Lien could reasonably be expected to have a Material
Adverse Effect, or (vi) result in the termination, suspension
or revocation of any Authorization (as defined below) of the
Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization
which termination, suspension or revocation could reasonably be
expected to have a Material Adverse Effect.
(l) Except
as set forth in the Registration Statement (excluding the exhibits
thereto), the Basic Prospectus and the Prospectus, (i) no
person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, and (iii) no person has
the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares, in the
case of each of the foregoing clauses (i), (ii) and (iii),
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise.
(m) Except
as set forth in the Registration Statement, the Basic Prospectus
and the Prospectus, there are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result,
singly or in the aggregate, in a Material Adverse Effect. All legal
or governmental proceedings, affiliate transactions, off-balance
sheet transactions, contracts, licenses, agreements, leases or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or
filed as required. Except as set forth in the Registration
Statement (excluding the exhibits thereto), the Basic Prospectus
and the Prospectus, neither the Company nor
11
any of its
subsidiaries has violated any foreign, federal, state or local law
or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental
Laws ”), or any provisions of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(n) There
are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(o) Each
of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other
approvals (each, an “ Authorization ”)
of, and has made all filings with and notices to, all governmental
or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any
applicable Environmental Laws, as are necessary to own, lease,
license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization
or to make any such filing or notice would not, singly or in the
aggregate, have a Material Adverse Effect. Each such Authorization
is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no
event has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization;
except where such failure to be valid and in full force and effect
or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(p) The
accountants, PricewaterhouseCoopers LLP, who have certified the
consolidated financial statements and supporting schedules as of
December 31, 2005 and December 31, 2004 and for each of
the three years in the period ended December 31, 2005,
included or incorporated by reference in the Registration
Statement, the Basic Prospectus and the Prospectus, are independent
registered public accountants with respect to the Company, as
required by the Act and by the rules of the Public Company
Accounting Oversight Board.
(q) The
historical financial statements, together with related schedules
and notes forming part of the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, present fairly the consolidated financial position,
results of operations and changes in financial position of the
Company and its subsidiaries on the basis stated in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus at the respective
12
dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in compliance with
the requirements of the Act and in accordance with U.S. generally
accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the other financial
and statistical information and data contained or incorporated by
reference in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus are, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company; there are no financial statements that are required
to be included or incorporated by reference in the Registration
Statement, the Basic Prospectus or the Prospectus that are not
included or incorporated by reference as required; and the Company
and its subsidiaries do not have any liabilities or obligations,
direct or contingent (including any off-balance sheet obligations)
that would result in a Material Adverse Effect, not described in
the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus.
(r) The
Company is not an “investment company,” as such term is
defined in the Investment Company Act of 1940, as
amended.
(s) No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2) under
the Act has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any
securities of the Company.
(t) Subsequent
to the respective dates as of which information is given in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any, in each case
excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, other than as set forth in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any, (i) there has
not occurred any material adverse change or any development
involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole,
(ii) there has not occurred any transaction which is material
to the Company and its subsidiaries, taken as a whole,
(iii) there has not been any change or any development
involving a prospective material adverse change in the capital
stock or in the long-term debt of the Company or any of its
subsidiaries, (iv) there has not been any dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company and (v) neither the Company nor any of
its subsidiaries has incurred any material liability or obligation,
direct or contingent.
(u) The
Company has obtained for the benefit of the Underwriter the Lock-Up
Agreement, in the form previously agreed upon by the Company and
the Underwriter, of each of its officers and stockholders named in
Exhibit A-1 hereto.
(v) The
Company and each of its subsidiaries has good and marketable title
to all property (real and personal) described in the Registration
Statement, the Basic
13
Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as being owned
by any of them, free and clear of all Liens, except for
(i) Liens disclosed in the Registration Statement, the Basic
Prospectus, the Prospectus and any Permitted Free Writing
Prospectus and (ii) such other Liens which could not
reasonably be expected to have a Material Adverse Effect; all the
material property described in the Registration Statement, the
Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as being held under lease by the Company or a subsidiary
is held thereby under valid, subsisting and enforceable leases with
such exceptions as would not have a Material Adverse
Effect.
(w) Neither
the Company nor any of its subsidiaries is engaged in any unfair
labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the
Company’s knowledge after due inquiry, threatened against the
Company or any of its subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements is pending or
threatened, (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company’s knowledge after due inquiry,
threatened against the Company or any of its subsidiaries and
(C) no union representation dispute currently existing
concerning the employees of the Company or any of its subsidiaries,
(ii) to the Company’s knowledge after due inquiry, no
union organizing activities are currently taking place concerning
the employees of the Company or any of its subsidiaries and
(iii) there has been no violation of any federal, state, local
or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any
provision of the Employee Retirement Income Security Act of 1974
(“ ERISA ”) or the rules and regulations
promulgated thereunder concerning the employees of the Company or
any of its subsidiaries.
(x) The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance 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.
(y) The
Company has established and maintains “disclosure controls
and procedures” (as such term is defined in Rule 13a-15
and 15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in
Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities; the Company’s independent auditors and
the Audit Committee of the Board of Directors have been advised of:
(i) any significant deficiencies in the design or operation of
internal controls which could
14
adversely
affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a
role in the Company’s internal controls; any material
weaknesses in internal controls
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