Exhibit 1.1
GOODMAN GLOBAL, INC.
23,529,411 Shares of Common
Stock
Underwriting Agreement
_______________, 2006
J.P. Morgan Securities
Inc.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Goldman, Sachs & Co.
As Representatives of
the
several Underwriters
listed
in Schedule I
hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Goodman Global, Inc., a Delaware
corporation (the “Company”) proposes to issue and sell
to the several Underwriters listed in Schedule I hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of 20,917,647 shares of common stock, par value $ 0.01 per
share (“Common Stock”), of the Company (the
“Primary Underwritten Shares”) and certain Stockholders
of the Company named in Schedule II hereto (the “Selling
Stockholders”) propose to issue and sell to the Underwriters
an aggregate of 2,611,764 shares of Common Stock of the Company
(the “Underwritten Secondary Shares” and together with
the Underwritten Primary Shares, the “Underwritten
Shares”) and, at the option of the Underwriters, up to an
additional 3,529,411 shares of Common Stock of the Company (the
“Option Shares”). The Underwritten Shares and the
Option Shares are herein referred to as the “Shares”.
The shares of Common Stock of the Company to be outstanding after
giving effect to the sale of the Shares are herein referred to as
the “Stock”.
The Company and the Selling
Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as
follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 131597)
including a prospectus, relating to the Shares. Such
registration statement, as amended at the time
it becomes effective, including the information, if any, deemed
pursuant to Rule 430A under the Securities Act to be part of the
registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before
it becomes effective, any prospectus filed with the Commission
pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term
“Prospectus” means the prospectus in the form first
used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of
sales of the Shares. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities
Act (the “Rule 462 Registration Statement”), then any
reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At the Time of Sale (as defined
below), the Company had prepared the following information
(collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated March 22, 2006, the pricing
information set forth on Annex C hereto and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex C hereto.
“Time of Sale” means
__________ (Eastern time) on the date of this Agreement.
2. Purchase of the Shares by the
Underwriters .
(a) The Company and each of the
Selling Stockholders agrees, severally and not jointly, to issue
and sell the Shares to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company and the Selling
Stockholders the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule I hereto at a
price per share (the “Purchase Price”) of
$ .
In addition, each of the Selling
Stockholders agrees, severally and not jointly, to issue and sell
the Option Shares to the several Underwriters as provided in this
Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Selling
Stockholders the Option Shares at the Purchase Price.
If any Option Shares are to be
purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the
same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number increased as
set forth in Section 12 hereof) bears to the aggregate number
of Underwritten Shares being purchased from the Company and the
Selling Stockholders by the several Underwriters, subject, however,
to such adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
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The Underwriters may exercise the
option to purchase the Option Shares at any time in whole, or from
time to time in part, on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives
to the Attorney-in-Fact (as defined below). Such notice shall set
forth the aggregate number of Option Shares as to which the option
is being exercised and the date and time when the Option Shares are
to be delivered and paid for which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier
than the Closing Date nor later than the tenth full business day
(as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 12 hereof). Any such notice shall be given at least
two Business Days prior to the date and time of delivery specified
therein.
(b) The Company and the Selling
Stockholders understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of
this Agreement as in the judgment of the Representatives is
advisable, and initially to offer the Shares on the terms set forth
in the Prospectus. The Company and the Selling Stockholders
acknowledge and agree that the Underwriters may offer and sell
Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or
through any Underwriter.
(c) Payment for the Shares shall be
made by wire transfer in immediately available funds to the account
specified by the Company and the Attorneys-in-Fact (as defined
below) to the Representatives in the case of the Underwritten
Shares, at the offices of Cahill Gordon & Reindel
LLP at 10:00 A.M. New York City time on _____, 2006,
or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the
Representatives, the Company and the Attorneys-in-Fact may agree
upon in writing or, in the case of the Option Shares, on the date
and at the time and place specified by the Representatives in the
written notice of the Underwriters’ election to purchase such
Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing
Date” and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date”.
Payment for the Shares to be
purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the
Representatives for the respective accounts of the several
Underwriters of the Shares to be purchased on such date in
definitive form registered in such names and in such denominations
as the Representatives shall request in writing not later than two
full business days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable
in connection with the sale of the Shares duly paid by the Company.
The certificates for the Shares will be made available for
inspection and packaging by the Representatives at the office of
J.P. Morgan Securities Inc. set forth above not later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date or the Additional Closing Date, as the case may be.
(d) Each of the Company and the
Selling Stockholders acknowledges and agrees that the Underwriters
are acting solely in the capacity of an arm’s length
contractual counterparty to the Company and the Selling
Stockholders with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Selling Stockholders or any other
person.
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Additionally, neither the Representatives nor
any other Underwriter is advising the Company, the Selling
Stockholders or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
and the Selling Stockholders shall consult with their own advisors
concerning such matters and shall be responsible for making their
own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company or the Selling
Stockholders with respect thereto. Any review by the Underwriters
of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for
the benefit of the Underwriters and shall not be on behalf of the
Company or the Selling Stockholders.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus .
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did 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, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in any Preliminary Prospectus.
(b) Time of Sale Information
. The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date and as of the Additional Closing Date, as the case
may be, 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; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information.
(c) Ineligible Issuer . The
Company is not an “Ineligible Issuer” as such term is
defined in Section 405 of the Securities Act.
(d) Issuer Free Writing
Prospectus . Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication
by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an
“Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act or (ii) the documents listed on Annex C
hereto and other written communications approved in writing in
advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects
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with the Securities Act, has been filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and at the Closing Date and as of the
Additional Closing Date, as the case may be, 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; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing
Prospectus.
(e) Registration Statement and
Prospectus . The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission and
no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering
has been initiated or, to the Company’s knowledge, threatened
by the Commission; as of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration
Statement 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; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may
be, the Prospectus 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, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
the Registration Statement and the Prospectus and any amendment or
supplement thereto.
(f) Financial Statements .
The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included in the
Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Exchange
Act”), as applicable, and present fairly in all material
respects the financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, and the supporting
schedules included in the Registration Statement present fairly in
all material respects the information required to be stated
therein; the other financial information included in the
Registration Statement, the Time of Sale Information and the
Prospectus has been prepared on a basis consistent with that of the
audited financial statements of the Company; all disclosures
contained in the Registration Statement, the Time of Sale
Information and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the
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rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Securities Act, to the extent
applicable.
(g) No Material Adverse
Change . Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Time of
Sale Information and the Prospectus, (i) there has not been
any change in the capital stock or long-term debt of the Company or
any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company
on any class of capital stock, or any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial
position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus.
(h) Organization and Good
Standing . The Company and each of its subsidiaries (A) is
a corporation, limited liability company, partnership or other
entity duly organized and validly existing under the laws of the
jurisdiction of its organization, (B) has all requisite
corporate or other power and authority necessary to own its
property and carry on its business as now being conducted and
(C) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it
or its ownership of property makes such qualification necessary,
except where the failure to be so qualified and be in good
standing, individually or in the aggregate, could not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect. A “Material Adverse Effect” means a
material adverse effect on the business, properties, management,
financial position, stockholders equity, results of operations or
prospects of the Company and the subsidiaries, taken as a whole.
The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the
subsidiaries listed in Exhibit 21 to the Registration
Statement.
(i) Capitalization . The
Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization”; all the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
nonassessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the
Time of Sale Information and the Prospectus, there are no
outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the
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Registration Statement, the Time of Sale
Information and the Prospectus; and all the outstanding shares of
capital stock or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and nonassessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of
any third party (except as otherwise described in the Registration
Statement, the Time of Sale Information and the
Prospectus).
(j) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company and the Company has full right, power and authority to
perform its obligations hereunder.
(k) The Shares . The Shares
to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid
for as provided herein, will be duly and validly issued and will be
fully paid and nonassessable and will conform to the descriptions
thereof in the Time of Sale Information and the Prospectus; and the
issuance of the Shares is not subject to any preemptive or similar
rights.
(l) No Violation or Default .
Neither the Company nor any of its subsidiaries is (A) in
violation of its charter, bylaws or other organizational documents,
(B) in default (or, with notice or lapse of time or both,
would be in default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, loan or credit
agreement, lease, license, franchise agreement, authorization,
permit, certificate or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, or
by which any of them is bound or to which any of their assets or
properties is subject (collectively, “Agreements and
Instruments”), or (C) except as disclosed in any Time of
Sale Information or the Prospectus, in violation of any law,
statute, rule or regulation or any judgment, order or decree of any
domestic or foreign court or other governmental or regulatory
authority, agency or other body with jurisdiction over any of them
or any of their assets or properties (“Governmental
Authority”), except, in the case of clauses (B) and
(C), for such defaults or violations that would not have, in the
aggregate, a Material Adverse Effect.
(m) No Conflicts . The
execution, delivery and performance by the Company of each of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default 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, any of the Agreements and
Instruments, (ii) result in any violation of the provisions of
the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material
Adverse Effect.
(n) No Consents Required . No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance
and
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sale of the Shares and the consummation of the
transactions contemplated by this Agreement, except for 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 or the bylaws and rules of the National Association of
Securities Dealers, Inc. (the “NASD”) in connection
with the purchase and distribution of the Shares by the
Underwriters and except as would not, individually in the
aggregate, have a Material Adverse Effect or have a material
adverse effect on the consummation of the transactions contemplated
by this Agreement.
(o) Legal Proceedings .
Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its subsidiaries is or may be a party
or to which any property of the Company or any of its subsidiaries
is or may be the subject that, in the aggregate, if determined
adversely to the Company or any of its subsidiaries, would have a
Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement; and (i) there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the
Registration Statement that are not so described in the
Registration Statement, the Time of Sale Information and the
Prospectus and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus that are
not so filed as exhibits to the Registration Statement or described
in the Registration Statement, the Time of Sale Information and the
Prospectus.
(p) Independent Accountants .
Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries are an independent
registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board
(United States) and as required by the Securities Act.
(q) Title to Real and Personal
Property . The Company and its subsidiaries have good and
marketable title in fee simple to all items of owned real property,
and good and marketable title to all personal property owned by
each of them in each case free and clear of any pledge, lien,
encumbrance, security interest or other defect or claim of any
third party, except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries or (ii) would not, in the
aggregate, have a Material Adverse Effect and (iii) are
described in the Registration Statement, the Time of Sale
Information and the Prospectus.
(r) Title to Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses except
where the failure to own, possess or have the right to employ such
Intellectual Property, in the aggregate, would not have a Material
Adverse Effect; and, to the Company’s knowledge,
the
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conduct of their respective businesses does not
conflict in any material respect with any such rights of others,
and the Company and its subsidiaries have not received any notice
of any claim of infringement or conflict with any such rights of
others that, in the aggregate, would have a Material Adverse
Effect.
(s) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Time of Sale
Information.
(t) Investment Company Act .
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 the Registration Statement, the Time of Sale
Information and the Prospectus, will not be required to register as
an “investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”).
(u) Taxes . The Company and
its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed
through the date hereof; and except as otherwise disclosed in the
Registration Statement, the Time of Sale Information and the
Prospectus or as would not, in the aggregate, have a Material
Adverse Effect, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or
assets.
(v) Licenses and Permits .
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess
or make the same would not, individually or in the aggregate, have
a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus or except where such revocation or modification would
not, individually or in the aggregate, have a Material Adverse
Effect, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course.
(w) No Labor Disputes . No
labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company,
is imminent and the Company is not aware of any existing or
imminent labor disturbance by, or dispute with, the employees of
any of its or its subsidiaries’ principal suppliers,
contractors or customers, except as would not have a Material
Adverse Effect.
(x) Compliance With Environmental
Laws . Expect as set forth in the Registration Statement, the
Time of Sale Information and the Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect,
(A) the Company and its subsidiaries are in
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compliance with and not subject to any pending
or, to their knowledge, threatened liability under applicable
Environmental Laws (as defined below), (B) the Company and its
subsidiaries have, and are in compliance with, all permits,
licenses or other similar approvals required by a Governmental
Authority under any applicable Environmental Laws for their current
operations and each of them is in full force and effect,
(C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding or notice or demand letter pending or, to their
knowledge, threatened against the Company or any of its
subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of its
subsidiaries, (E) neither the Company nor any of its
subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“CERCLA”), or any comparable state law and (F) no
property or facility of the Company or any of its subsidiaries is
(y) listed or proposed for listing on the National Priorities
List under CERCLA or (z) listed on the Comprehensive
Environmental Response, Compensation and Liability Information
System List promulgated pursuant to CERCLA, or, to the knowledge of
the Company, on any comparable list maintained by any Governmental
Authority. To the knowledge of the Company, no event or condition
is occurring or has occurred with respect to the Company or any of
its Subsidiaries relating to any release of any hazardous or toxic
materials, substance or waste or any other pollutant or
contaminant, that, individually or in the aggregate, would have a
Material Adverse Effect.
For purposes of this Agreement,
“Environmental Laws” means all applicable federal,
state, local and foreign laws, regulations, rules, ordinances,
codes, orders, decrees, judgments or any other legally enforceable
requirement issued, promulgated, approved or entered thereunder,
relating to pollution or protection of public or employee health
and safety or the environment, including, without limitation, laws
relating to: (A) emissions, discharges, releases or threatened
releases of hazardous materials into the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata), (B) the processing,
distribution, use, generation, treatment, storage, disposal,
transport, arrangement for disposal or transport or handling of
hazardous or toxic materials, dangerous substances or wastes or any
other pollutant or contaminant, and (C) underground and
aboveground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(y) Compliance With ERISA .
Neither the Company nor any of its subsidiaries has any liability
for any prohibited transaction or accumulated funding deficiency
(within the meaning of Section 412 of the Internal Revenue
Code) or any complete or partial withdrawal liability with respect
to any pension or multiemployer plan which is subject to Title IV
of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), to which the Company or any of its
subsidiaries makes or has in the six year period prior to date of
this Agreement made a contribution and in which any employee of the
Company or any of its subsidiaries is or has in the six year period
prior to date of this Agreement been a participant. With respect to
such plans, the Company and each subsidiary is in compliance in all
material respects with all applicable provisions of
ERISA.
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(z) Disclosure Controls . The
Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(aa) Accounting Controls .
The Company and its subsidiaries maintain 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 their financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for their
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
The Company and its subsidiaries have carried out evaluations of
the effectiveness of their disclosure controls and procedures.
Except as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no material weaknesses in
the Company’s internal controls.
(bb) Insurance . The Company
and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, which insurance
is in amounts and insures against such losses and risks as are
adequate to protect the Company and its subsidiaries and their
respective businesses; and neither the Company nor any of its
subsidiaries has (i) received notice from any insurer or agent
of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such
insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage at reasonable cost
from similar insurers as may be necessary to continue its
business.
(cc) No Unlawful Payments .
Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(dd) Compliance 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 jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered
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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 best knowledge of the Company,
threatened.
(ee) Compliance with OFAC .
None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or Affiliate
of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares
hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(ff) No Restrictions on
Subsidiaries . Except as disclosed in the Registration
Statement, Time of Sale Information and Prospectus, no subsidiary
of the Company is currently prohibited, directly or indirectly,
under any agreement or other instrument to which it is a party or
is subject, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other
subsidiary of the Company.
(gg) No Broker’s Fees .
Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the
Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Shares.
(hh) No Registration Rights .
Except as disclosed in the Registration Statement, Time of Sale
Information and Prospectus, no person has the right to require the
Company or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale
of the Shares.
(ii) No Stabilization . The
Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
(jj) Margin Rules . Neither
the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Information and the
Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(kk) Forward-Looking
Statements . No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of
the Exchange Act) contained in the Registration Statement, the Time
of Sale Information and the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
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(ll) Statistical and Market
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 the Registration Statement, the
Time of Sale Information and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(mm) Sarbanes-Oxley Act .
There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities
as such, to comply, to the extent applicable, with any provision of
the Sarbanes-Oxley Act of 2002, and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
4. Representations and Warranties
of the Selling Stockholders . Each of the Selling Stockholders
severally represents and warrants to each Underwriter and the
Company that:
(a) Required Consents;
Authority . All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling
Stockholder of this Agreement and the Power of Attorney (the
“Power of Attorney”) and the Custody Agreement (the
“Custody Agreement”) hereinafter referred to, and for
the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder; this Agreement, the Power of
Attorney and the Custody Agreement have each been duly authorized,
executed and delivered by such Selling Stockholder.
(b) No Conflicts . The
execution, delivery and performance by such Selling Stockholder of
this Agreement, the Power of Attorney and the Custody Agreement,
the sale of the Shares to be sold by such Selling Stockholder and
the consummation by such Selling Stockholder of the transactions
herein and therein contemplated will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of such Selling Stockholder pursuant to, any bond,
debenture, note, indenture, mortgage, deed of trust, loan or credit
agreement, lease, license, franchise agreement, authorization,
permit, certificate or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, (ii) if such Selling Stockholder is
not a natural person, result in any violation of the provisions of
the charter or by-laws or similar organizational
documents
