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EXECUTION COPY
17,145,000 Shares
The St. Joe Company
Common Stock
(No Par Value)
EQUITY UNDERWRITING
AGREEMENT
February 26, 2008
Deutsche Bank Securities
Inc.
60 Wall Street, 4 th Floor
New York, New York 10005
Ladies and Gentlemen:
The St.
Joe Company, a Florida corporation (the “Company”),
proposes to sell to you (the “Underwriter” or
“you”) an aggregate of 17,145,000 shares (the
“Shares”) of the Company’s common stock, no par
value per share (the “Common Stock”), all of which will
be sold by the Company.
In
consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby,
the parties hereto agree as follows:
1.
Representations and
Warranties of the Company .
The
Company represents and warrants to the Underwriter as follows:
(a) An “automatic shelf registration statement” as
defined in Rule 405 under the Securities Act of 1933, as
amended (the “Act”) on Form S-3 (File
No. 333-149371) in respect of the Shares, including a form of
prospectus (the “Base Prospectus”), has been prepared
and filed by the Company not earlier than three years prior to the
date hereof, in conformity with the requirements of the Act and the
rules and regulations (the “Rules and Regulations”) of
the Securities and Exchange Commission (the
“Commission”) thereunder. The Company and the
transactions contemplated by this Agreement meet the requirements
and comply with the conditions for the use of Form S-3. The
Registration Statement meets the requirements of
Rule 415(a)(1)(x) under the Act and complies in all material
respects with said rule. Copies of such registration statement,
including any amendments thereto, the Base Prospectus, as
supplemented by any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Shares filed
with the Commission pursuant to Rule 424(b) under the Act, and
including the documents incorporated in the Base Prospectus by
reference (a “Preliminary Prospectus”), and the
exhibits, financial statements and schedules to such registration
statement, in each case as finally amended and revised, have
heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the
Company pursuant to Rules 413(b) and 462(f) under the Act, is
herein referred to as the “Registration Statement,”
which shall be deemed to include all information omitted therefrom
in reliance upon Rules 430A, 430B or 430C under the Act and
contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. The term
“Prospectus” as used in this Agreement means the form
of prospectus relating to the Shares first filed with the
Commission pursuant to and within the time limits described in Rule
424(b) under the Act and in accordance with Section 4(a) hereof.
Any reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus or to any amendment or supplement to
any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein as of the
date of the Registration Statement, Preliminary Prospectus or
Prospectus, and, in the case of any reference herein to the
Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or
amendments thereto, filed with the Commission after the date of
filing of the Prospectus Supplement under Rule 424(b) under the
Act, and prior to the termination of the offering of the Shares by
the Underwriter.
(b) As of the Applicable Time (as defined below) and as of the
Closing Date (as defined below), neither (i) the General Use
Free Writing Prospectus(es) (as defined below) issued at or prior
to the Applicable Time, the Statutory Prospectus (as defined below)
and the information included on Schedule I hereto, all
considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free
Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included or will include any
untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or
omitted from any Issuer Free Writing Prospectus, in reliance upon,
and in conformity with, written information furnished to the
Company by or on behalf of the Underwriter, specifically for use
therein, it being understood and agreed that the only such
information is that described in Section 12 herein. As used in
this subsection and elsewhere in this Agreement:
“Applicable Time” means 5:00 pm (New York time) on the
date of this Agreement or such other time as agreed to by the
Company and the Underwriter.
“Statutory Prospectus” means the Base Prospectus, as
amended and supplemented immediately prior to the Applicable Time,
including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g) under the Act.
“General Use Free Writing Prospectus” means any Issuer
Free Writing Prospectus that is identified on Schedule II to
this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer
Free Writing Prospectus that is not a General Use Free Writing
Prospectus.
(c) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Florida, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus. The Company has no significant subsidiaries other than
St. Joe Timberland Company of Delaware, LLC, and St. Joe
Residential Acquisitions, Inc. (together, the
“Subsidiaries”). Each of the Subsidiaries has been duly
organized and is validly existing as an entity in good standing
under the laws of the jurisdiction of its organization, with
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus except to the
extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect (as defined below). The
Company and each of the Subsidiaries are duly qualified to transact
business in all jurisdictions in which the conduct of their
business requires such qualification, except where the failure to
be so qualified could not reasonably be expected to (i) result
in any material adverse change or prospective material adverse
change in or affecting the business or operations of the Company
and of the Subsidiaries taken as a whole, or (ii) prevent,
burden or impair the consummation of the transactions contemplated
by this Agreement (collectively a “Material Adverse
Effect”). The outstanding shares of capital stock or
ownership interests, as applicable, of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company or another Subsidiary
free and clear of all liens, encumbrances and equities and claims;
and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in
the Subsidiaries are outstanding.
(d) The outstanding shares of Common Stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company
have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. Neither
the filing of the Registration Statement nor the offering or sale
of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for
or relating to the registration of any shares of Common Stock.
(e) All of the Shares conform to the description thereof
contained in the Registration Statement, the General Disclosure
Package and the Prospectus. The form of certificates for the Shares
conforms to the corporate law of the jurisdiction of the
Company’s incorporation and to any requirements of the
Company’s organizational documents. Subsequent to the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the
Prospectus, except as otherwise specifically stated therein or in
this Agreement, the Company has not: (i) issued any securities
(other than securities issued in connection with the exercise or
grant of outstanding stock options or other employee stock plans)
or incurred any liability or obligation, direct or contingent, for
borrowed money; or (ii) declared or paid any dividend or made
any other distribution on or in respect to its capital.
(f) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus relating to the proposed
offering of the Shares, and no proceeding for that purpose or
pursuant to Section 8A of the Act has been instituted or, to
the Company’s knowledge, threatened by the Commission. The
Registration Statement contains, and the Prospectus and any
amendments or supplements thereto will contain, all statements
which are required to be stated therein by, and will conform to,
the requirements of the Act and the Rules and Regulations. The
documents incorporated, or to be incorporated, by reference in the
Prospectus, at the time filed with the Commission conformed or will
conform, in all respects to the requirements of the Securities
Exchange Act of 1934 (“Exchange Act”) or the Act, as
applicable, and the rules and regulations of the Commission
thereunder. The Registration Statement does not contain, and any
amendment thereto will not contain, any untrue statement of a
material fact and do not omit, and will not omit, to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus and any
amendments and supplements thereto do not contain, and will not
contain, any untrue statement of a material fact; and do not omit,
and will not 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, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement
or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of the Underwriter, specifically for use
therein, it being understood and agreed that the only such
information is that described in Section 12 herein.
(g) Each Issuer Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the public
offer and sale of the Shares or until any earlier date that the
Company notified or notifies the Underwriter as described in the
next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference and
any Prospectus Supplement deemed to be a part thereof that has not
been superseded or modified. The foregoing does not apply to
statements or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for use
therein.
(h) The Company has not, directly or indirectly, distributed
and will not distribute any offering material in connection with
the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus, any Permitted Free Writing Prospectus
(defined below) and other materials, if any, permitted under the
Act and consistent with Section 4(b)(ii) below. The Company
will file with the Commission all Issuer Free Writing Prospectuses
in the time and manner required under Rules 163(b)(2) and
433(d) under the Act.
(i) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) under the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer
relating to the Shares in reliance on the exemption of
Rule 163 under the Act and (iv) at the date hereof, the
Company is a “well-known seasoned issuer” as defined in
Rule 405 under the Act . The Company has not received
from the Commission any notice pursuant to Rule 401(g)(2)
under the Act objecting to the use of the automatic shelf
registration form.
(j) (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Shares and (ii) as
of the date hereof (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an “ineligible issuer” (as defined in Rule 405
under the Act, without taking into account any determination by the
Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an ineligible issuer),
including, without limitation, for purposes of Rules 164 and
433 under the Act with respect to the offering of the Shares as
contemplated by the Registration Statement.
(k) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules as set
forth or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, present fairly
the financial position and the results of operations and cash flows
of the Company and the consolidated Subsidiaries, at the indicated
dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with generally
accepted principles of accounting (“GAAP”),
consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The
summary and selected consolidated financial and statistical data
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
presents fairly in all material respects the information shown
therein and such data has been compiled on a basis consistent with
the financial statements presented therein and the books and
records of the Company. All disclosures contained in the
Registration Statement, the General Disclosure Package and the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the Rules and Regulations) comply with
Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable. The
Company and the Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities”
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus. There
are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement, the General
Disclosure Package or the Prospectus that are not included as
required.
(l) KPMG LLP, who have certified certain of the financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, the General Disclosure
Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company and the Subsidiaries
within the meaning of the Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board
(United States) (the “PCAOB”).
(m) Solely to the extent that the Sarbanes-Oxley Act of 2002,
as amended, and the rules and regulations promulgated by the
Commission and the New York Stock Exchange thereunder (the
“Sarbanes-Oxley Act”) has been applicable to the
Company, there is and has been no failure on the part of the
Company to comply in all material respects with any provision of
the Sarbanes-Oxley Act.
(n) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or
any of the Subsidiaries before any court or administrative agency
or otherwise which if determined adversely to the Company or any of
the Subsidiaries would have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus.
(o) The Company and the Subsidiaries have filed all Federal,
State, local and foreign tax returns which have been required to be
filed and have paid all taxes indicated by such returns and all
assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith and
for which an adequate reserve for accrual has been established in
accordance with GAAP. All tax liabilities have been adequately
provided for in the financial statements of the Company, and the
Company does not know of any actual or proposed additional material
tax assessments.
(p) Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package
and the Prospectus, as each may be amended or supplemented, there
has not been any material adverse change or prospective material
adverse change in or affecting the business or operations of the
Company and the Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business, and there has not
been any material transaction entered into or any material
transaction that is probable of being entered into by the Company
or the Subsidiaries, other than transactions in the ordinary course
of business and changes and transactions described in the
Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented.
(q) Neither the Company nor any of the Subsidiaries is or with
the giving of notice or lapse of time or both, will be, (i) in
violation of its certificate or articles of incorporation, by-laws,
certificate of formation, limited liability agreement, partnership
agreement or other organizational documents or (ii) in
violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party
or by which it, or any of its properties, is bound and, solely with
respect to this clause (ii), which violation or default would have
a Material Adverse Effect. The execution and delivery of this
Agreement and the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or
any Subsidiary or any of their respective properties is bound, or
of the certificate or articles of incorporation or by-laws of the
Company or any law, order, rule or regulation, judgment, order,
writ or decree applicable to the Company or any Subsidiary of any
court or of any government, regulatory body or administrative
agency or other governmental body having jurisdiction, except to
the extent that such conflict, breach or default would not have a
Material Adverse Effect.
(r) There is no document, contract or other agreement required
to be described in the Registration Statement or Prospectus or to
be filed as an exhibit to the Registration Statement which is not
described or filed as required by the Act or the Rules and
Regulations. Each description of a contract, document or other
agreement in the Registration Statement and the Prospectus
accurately reflects in all material respects the terms of the
underlying contract, document or other agreement.
(s) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement has been duly and
validly authorized by all necessary corporate action on the part of
the Company, and this Agreement has been duly executed and
delivered by the Company.
(t) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution
and delivery by the Company of this Agreement and the consummation
of the transactions herein contemplated (except such additional
steps as may be required by the Commission, the Financial Industry
Regulatory Authority (“FINRA”) or such additional steps
as may be necessary to qualify the Shares for public offering by
the Underwriter under state securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(u) Except as described in the Registration Statement or in
any document incorporated by reference therein, the Company and
each of the Subsidiaries hold all material licenses, certificates
and permits from governmental authorities which are necessary to
the conduct of their businesses in the manner in which they are
being conducted.
(v) With respect to any development or developable property
identified in the Registration Statement, the General Disclosure
Package and the Prospectus and any other property in excess of
1,000 acres owned by the Company or one of its Subsidiaries,
whether such property is held for development, sale, lease or any
other purpose (the “Properties”), (i) except as
disclosed in the Prospectus, the Company or one of its Subsidiaries
has good and marketable fee simple title to the land underlying the
Properties and good and marketable title to the improvements
thereon, subject to utility easements serving such Properties, to
zoning and similar governmental land use matters affecting such
Properties that are consistent with the current uses of such
Properties and to liens, encumbrances, defects and other matters of
title that would not have a material adverse effect on the value of
such Properties or materially interfere with their current or
currently anticipated future uses, (ii) all liens, charges,
encumbrances, claims, or restrictions on or affecting any of the
Properties and the assets of the Company which are required to be
disclosed in the Registration Statement and the Prospectus are
disclosed therein; (iii) each of the Properties complies with
all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and
laws relating to access to the Properties), except to the extent
disclosed in the Prospectus and except for such failures to comply
that would not have a Material Adverse Effect on the Company and
its Subsidiaries, taken as a whole; and (iv) the Company has
no knowledge of any pending or threatened condemnation proceedings,
zoning change, or other similar proceeding or action that would
affect the size of, use of, improvements on, construction on or
access to any of the Properties, except such proceedings, changes
or actions that would not have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
(w) Neither the Company, nor to the Company’s knowledge,
any of its affiliates, has taken or may take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Underwriter may engage in passive
market making transactions in the Shares on the New York Stock
Exchange in accordance with Regulation M under the Exchange
Act.
(x) Neither the Company nor any Subsidiary is or, after giving
effect to the offering and sale of the Shares contemplated
hereunder and the application of the net proceeds from such sale as
described in the Registration Statement, General Disclosure Package
and the Prospectus, will be an “investment company”
within the meaning of such term under the Investment Company Act of
1940 as amended (the “1940 Act”), and the rules and
regulations of the Commission thereunder.
(y) The statistical data included in the Registration
Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data
agree with the sources from which they are derived.
(z) Neither the Company nor, to the Company’s knowledge,
any director, officer, agent, employee or affiliate of the Company
is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(aa) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as
the Company reasonably deems adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar
businesses.
(bb) Except as disclosed in the Registration Statement or any
document incorporated by reference therein, neither the Company nor
any of the Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, “environmental
laws”), owns or operates any real property contaminated with
any substance that is subject to environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would, individually or in the aggregate, have a Material
Adverse Effect; and the Company is not aware of any pending
investigation which could reasonably be expected to lead to such a
claim.
(cc) The Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common
Stock under the Exchange Act or the listing of the Common Stock on
the New York Stock Exchange, nor has the Company received any
notification that the Commission or the New York Stock Exchange is
contemplating terminating such registration or listing.
(dd) There are no relationships or related-party transactions
involving the Company or any of the Subsidiaries or any other
person required to be described in the Prospectus which have not
been described as required.
(ee) Except for this Agreement, neither the Company nor any of
its Subsidiaries is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against the Company or the Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Shares.
(ff) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate located
in Cuba.
2.
Purchase, Sale and
Delivery of the Shares .
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein
set forth, the Company agrees to sell to the Underwriter and the
Underwriter agrees to purchase, at a price of $33.833 per share,
the Shares.
(b) Payment for the Shares to be sold hereunder is to be made
in Federal (same day) funds to an account designated by the Company
against delivery of certificates therefor to the Underwriter. Such
payment and delivery are to be made through the facilities of The
Depository Trust Company, New York, New York at 10:00 a.m.,
New York time, on the fourth business day after the date of this
Agreement or at such other time and date not later than five
business days thereafter as you and the Company shall agree upon,
such time and date being herein referred to as the “Closing
Date.” As used herein, “business day” means a day
on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and are not permitted
by law or executive order to be closed.
3. Offering by the
Underwriter .
It is
understood that the Underwriter is to make a public offering of the
Shares as soon as the Underwriter deems it advisable to do so. The
Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Underwriter
may from time to time thereafter change the public offering price
and other selling terms.
4.
Covenants of the
Company .
The
Company covenants and agrees with the Underwriter that:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) under the Act a Prospectus in a form
approved by the Underwriter containing information previously
omitted at the time of effectiveness of the Registration Statement
in reliance on Rules 430A, 430B or 430C under the Act,
(ii) not file any amendment to the Registration Statement or
distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference
therein of which the Underwriter shall not previously have been
advised and furnished with a copy or to which the Underwriter shall
have reasonably objected in writing or which is not in compliance
with the Rules and Regulations and (iii) file on a timely
basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriter.
(b) The Company will (i) not make any offer relating to
the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 under the Act)
required to be filed by the Company with the Commission under
Rule 433 under the Act unless the Underwriter approves its use
in writing prior to first use (each, a “Permitted Free
Writing Prospectus”); provided that the prior written consent
of the Underwriter hereto shall be deemed to have been given in
respect of the Issuer Free Writing Prospectus(es) included in
Schedule II hereto, (ii) treat each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus,
(iii) comply with the requirements of Rules 164 and 433
under the Act applicable to any Issuer Free Writing Prospectus,
including the requirements relating to timely filing with the
Commission, legending and record keeping and (iv) not take any
action that would result in the Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
(c) The Company will advise the Underwriter promptly
(i) when any post-effective amendment to the Registration
Statement or new registration statement relating to the Shares
shall have been declared effective or any supplement to the
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request of the
Commission for amendment of the Registration Statement or the
filing of a new registration statement or any amendment or
supplement to the General Disclosure Package or the Prospectus or
any document incorporated by reference therein or otherwise deemed
to be a part thereof or for any additional information, and
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or such
new registration statement or any order preventing or suspending
the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or of the institution of any
proceedings for that purpose or pursuant to Section 8A of the
Act. The Company will use commercially reasonable efforts to
prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(d) If at any time when Shares remain unsold by the
Underwriter the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) under the Act or otherwise ceases
to be eligible to use the automatic shelf registration statement
form, the Company will (i) promptly notify the Underwriter,
(ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Shares,
in a form satisfactory to the Underwriter, (iii) use its best
efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable (if such
filing is not otherwise effective immediately pursuant to
Rule 462 under the Act), and (iv) promptly notify the
Underwriter of such effectiveness. The Company will take all other
action necessary or ap
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