|
Exhibit 1.1
EXECUTION COPY
3,000,000 Shares
JAMES RIVER COAL COMPANY
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
March
19, 2008
March
19, 2008
UBS
Securities LLC
As
representative of the several Underwriters
Named
in Schedule I hereto
c/o
UBS Securities LLC
299 Park
Avenue
New York, New York
10171
Dear
Sirs and Mesdames:
James
River Coal Company, a Virginia corporation (the “
Company ”),
proposes to issue and sell to the several Underwriters named
in Schedule I hereto (the “ Underwriters
”), an aggregate of 3,000,000 shares of the common
stock, par value $0.01 per share, of the Company (the “
Firm
Shares ”). The Company also proposes
to issue and sell to the several Underwriters not more than an
additional 450,000 shares of its common stock, par value $0.01
per share, of the Company (the “ Additional Shares
”), if and to the extent that you, as Representatives,
shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common
stock granted to the Underwriters in Section 3
hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares
.” The shares of common stock, par value $0.01 per
share, of the Company to be outstanding after giving effect to
the issuance and sale contemplated hereby are hereinafter
referred to as the “ Common Stock
.”
The
Company has filed with the Securities and Exchange Commission
(the “ Commission
”) a registration statement on Form S-3
(No. 333-143563), including a prospectus, relating to the
registration of certain shares of Common Stock (the “
Shelf
Securities ”), to be sold from time to time by
the Company. The registration statement, as it
relates to the Shares being sold in this offering, as amended
to the date of this Agreement, including the information (if
any) deemed to be part of such registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 430B
under the Securities Act of 1933, as amended (the “
Securities
Act ”), is hereinafter referred to as the “
Registration
Statement ”; and the related prospectus covering
the Shelf Securities dated June 25, 2007 and in the form first
used to confirm sales of the Shelf Securities (or in the form
first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “
Basic
Prospectus .” If the Company has filed an
abbreviated registration
2
statement
to register additional shares of Common Stock 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. The Basic
Prospectus, as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to
confirm sales of the Shares (or in the form first made
available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Prospectus
,” and the term “preliminary prospectus”
means any preliminary form of the Prospectus.
For
purposes of this Agreement, “ free writing
prospectus ” has the meaning set forth in Rule
405 under the Securities Act, “ Time of Sale
Prospectus ” means the preliminary prospectus
identified on Schedule II hereto, together with the free
writing prospectuses, if any, identified on Schedule II
hereto, and “ broadly available road
show ” means a “ bona fide electronic road
show ” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without
restriction to any person. As used herein, the
terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms
“ supplement
,” “ amendment ,”
and “ amend ” as
used herein with respect to the Registration Statement, the
Basic Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or any free writing prospectus shall include all
documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act
”), that are incorporated by reference
therein.
1.
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a)
The
Company meets the requirements for use of Form S-3 under the
Securities Act ; the Registration Statement has become effective;
no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b)
(i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain and, each such part, as amended or supplemented, if
applicable, will not
3
contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the
Registration Statement as of the date hereof does not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) the
Registration Statement complies, and the Prospectus, as of its
date, will comply and the Registration Statement and the
Prospectus, as amended or supplemented, if applicable, as of
the Closing Date (as defined in Section 4), will comply, in
all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder,
(v) the Time of Sale Prospectus, at the time of the sale
of the Shares and at the Closing Date (as defined in Section
4), will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, (vi) each broadly
available road show, if any, and any issuer free writing
prospectus as defined in Rule 433(h) under the Securities
Act, when considered together as a whole with the Time of Sale
Prospectus, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vii) the
Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus, any issuer free
writing prospectus as defined in Rule 433(h) under the
Securities Act (and to which the Underwriters have not
objected in accordance with the provisions of
Section 6(d) of this Agreement), or the Prospectus based
upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly
for use therein.
(c)
The
Company is not an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will
4
comply
in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule II
hereto
forming part of the Time of Sale Prospectus, and electronic
road shows, if any, each furnished to you before first use,
the Company has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d)
The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries or their prospects,
taken as a whole.
(e)
Each
subsidiary of the Company has been duly incorporated or organized,
is validly existing as a corporation or other entity in good
standing under the laws of the jurisdiction of its organization,
has the power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries or their prospects, taken as a whole; except as set
forth in the Time of Sale Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement),
all of the issued shares of capital stock or other ownership
interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and are owned directly by the Company free and clear of all liens,
encumbrances, equities or claims.
(f)
This
Agreement has been duly authorized, executed and delivered by the
Company.
(g)
The
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus and the Company has an
outstanding
5
capitalization
as set forth or incorporated by reference in the Time of Sale
Prospectus and the Prospectus.
(h)
The shares of Common Stock outstanding prior to the issuance
of the Shares to be sold by the Company have been duly
authorized and are validly issued, fully paid and
non-assessable.
(i)
The
Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar
rights.
(j)
The
execution and delivery by the Company of this Agreement and the
performance by the Company of its obligations under this Agreement,
will not, contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company and its subsidiaries and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of
its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Shares.
(k)
There
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business, operations or
prospects of the Company and its subsidiaries, taken as a whole,
from that set forth in the Time of Sale Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of
this Agreement).
(l)
There
are no legal or governmental proceedings, including, without
limitation, any proceedings pursuant to Environmental Laws (as
defined below), pending or threatened to which the Company or any
of its subsidiaries or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Time of Sale
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Time of Sale Prospectus
or
6
to be filed as
exhibits to the Registration Statement that are not described
or filed as required.
(m)
Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(n)
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 Time of Sale Prospectus will not be, required to register as
an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(o)
The
Company and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws, regulations,
orders, decrees and judgments relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“ Environmental Laws
”), (ii) have received or obtained all permits, licenses or
other approvals required of them under applicable Environmental
Laws to conduct their respective businesses, and (iii) are in
compliance with all terms and conditions of any such permit license
or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries or their prospects, taken as a whole.
(p)
Except
as disclosed in the financial statements incorporated by reference
in the Registration Statement, there are not, with respect to the
Company and its subsidiaries any costs or liabilities associated
with Environmental Laws (including, without limitation, any capital
or operating expenditures, any clean-up requirements or
obligations, any costs or liabilities relating to closure of
properties or mines or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities for off-site disposal or
contamination, exposure to hazardous substances or other potential
liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries or their prospects, taken as a whole.
7
(q)
There
are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities Act
with respect to any securities of the Company.
(r)
The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of
the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
have a material adverse affect on the Company and its
subsidiaries or their prospects, taken as a
whole.
(s)
The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them which is material to the business
of the Company and its subsidiaries free and clear of all liens,
encumbrances and defects except such as are described in the Time
of Sale Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) or such as do not
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property (including,
without limitation, any subsurface rights) and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the use made
and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in
the Time of Sale Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement).
(t)
No
material labor dispute with the employees of the Company or any of
its subsidiaries exists, except as described in the Time of Sale
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), or, to the knowledge of
the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees
of any of its principal suppliers, manufacturers or contractors
that could have a
8
material
adverse effect on the Company and its subsidiaries or their
prospects, taken as a whole.
(u)
The
Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor
any of its subsidiaries has been r
efused
any insurance coverage sought or applied for; and neither the
Company nor any of its subsidiaries has 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 from similar insurers as may be necessary to
continue its business at a cost that would not have a material
adverse effect on the Company and its subsidiaries or their
prospects, taken as a whole, except as described in the Time
of Sale Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this
Agreement).
(v)
The
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and
to maintain asset accountability; (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 the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences. Except as described in the Time of Sale
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), since December 31, 2007,
there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(w)
The
consolidated historical financial statements of the Company and its
consolidated subsidiaries incorporated by reference in the Time of
Sale Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of
operations and cash flows of the Company, as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and the Exchange Act
and have been prepared in
9
conformity
with U.S. generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial
data incorporated by reference in the Time of Sale Prospectus
and the Registration Statement and set forth under the caption
“Part II —
Item 6 —
Selected Financial Data” from the Company’s Annual
Report on Form 10-K filed on March 6, 2008 fairly present, on
the basis stated therein, the information included
therein.
(x)
The Company and each of its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, national, state or foreign regulatory
authorities, including, without limitation, any permits or
approvals required by the United States Office of Surface
Mining Reclamation and Enforcement and corresponding state
agencies, as are necessary to conduct their respective
businesses, and neither the Company nor its subsidiaries has
received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries or their
prospects, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Time of Sale Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(y)
There
is and has been no material failure on the part of the Company and
any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related
to loans and Sections 302 and 906 related to
certifications.
(z)
All
information related to the Company’s coal reserves
(including, without limitation, the Company’s estimated
reserves of recoverable coal in the aggregate and by mining complex
location) included in the Registration Statement and the Time of
Sale Prospectus (collectively, the “ Reserve Information
”) (i) is accurate in all material respects, (ii) complies in
all material respects with the applicable requirements of the
Securities Act and the
rules thereunder, and (iii) when read together with the other
information in the Time of Sale Prospectus, does 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 Reserve
Information has been calculated in accordance with standard mining
engineering procedures
10
used
in the coal industry and applicable government reporting
requirements and applicable law. All assumptions used in
the calculation of the Reserve Information were and are
reasonable.
(aa)
All
statistical or market-related data included in the Registration
Statement or the Time of Sale Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate,
and the Company has obtained the written consent to the use of such
data from such sources to the extent required.
In
addition, any certificate signed by any officer of the Company
or any of the subsidiaries of the Company and delivered to the
Underwriters or counsel for the Underwriters in connection
with this offering of the Shares and that specifically
identifies this Agreement shall be deemed to be a
representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
2.
Agreements to Sell and Purchase . The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and
not jointly, to purchase from the Company at $14.72 a share (the
“ Purchase
Price ”) the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine)
that bears the same proportion to the number of Firm Shares to be
issued and sold by the Company as the number of Firm Shares set
forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
On
the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the
Company agrees to issue and sell to the Underwriters, and the
Underwriters shall have the right to purchase, severally and
not jointly, up to 450,000 Additional Shares at the Purchase
Price. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving
written notice of each election to exercise the option not
later than 30 days after the date of this
Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be
purchased. Each purchase date must be at least one
business day after the written notice is given and may not be
earlier than the closing date for the Firm Shares nor later
than ten business days after the date of such
notice. Additional Shares may be purchased as
provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering
of the Firm Shares. On each day, if any, that
Additional Shares are to be purchased (an “ Option Closing
Date ”), each Underwriter agrees, severally and
not jointly, to purchase the number of
11
Additional
Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such
Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears
to the total number of Firm Shares.
The
Company hereby agrees that, without the prior written consent
of UBS Securities LLC on behalf of the Underwriters, it will
not, during the period ending 60 days after the date of
the Prospectus, (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option
or contract to sell,
grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise or (3) file any registration statement with the
Commission relating to the offering of any shares of Common
Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The restrictions
contained in the preceding sentence shall not apply
to:
(A) the
Shares to be sold hereunder;
(B)
the issuance by the Company of:
(i) shares
of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which
the Underwriters have been advised in writing;
(ii) shares
of Common Stock or securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock in exchange for equity or
assets of another entity in connection with a merger, acquisition
or strategic investment, provided that prior to
any such issuance the recipient of such securities shall have
agreed with UBS Securities LLC to be bound the terms of this
Section 2 for the remainder of such 60-day period;
(iii) restricted
Common Stock and options to purchase Common Stock pursuant to the
Company’s 2004 Equity Incentive Plan (the “
2004 Plan
”) as in effect on the date hereof, provided that (1) the
aggregate amount of restricted Common Stock and options issued by
the Company pursuant to this clause (iii) shall not exceed the
aggregate amount of securities reserved for issuance under
the
12
2004
Plan as of the date hereof and (2) any restricted Common Stock or
options issued by the Company pursuant to this clause (iii) shall
neither vest nor become unrestricted, as applicable, for the
remainder of such 60-day period; and
(iv) shares
of Common Stock issued solely in an exchange for any of the
Company’s outstanding bonds in an amount up to
$25,000,000 at a nominal valuation per share not less than
$1.00 per share above the last publicly traded price as quoted
on the Nasdaq Global Market on March 18, 2008.
3.
Terms of Public Offering . The Company is advised by you
that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your
judgment is advisable. The Company is further advised by
you that the Shares are to be offered to the public initially at
$14.95 a share (the “ Public Offering Price
”).
4.
Payment and Delivery . Payment for the Firm Shares to be
issued and sold by the Company shall be made to the Company in
Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of
the several Underwriters at 10:00 a.m., New York City time, on
March 25, 2008, or at such other time on the same or such other
date, not later than April 1, 2008, as shall be designated in
writing by you. The time and date of such payment are
hereinafter referred to as the “ Closing Date
.”
Payment
for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective
accounts of the several Underwriters at 10:00 a.m., New
York City time, on the date specified in the corresponding
notice described in Section 2 or at such other time on the
same or on such other date, in any event not later than May 2,
2008, as shall be designated in writing by you.
The
Firm Shares and Additional Shares shall be registered in such
names and in such denominations as you shall request in
writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the
case may be. The Firm Shares and Additional Shares
shall be delivered to you on the Closing Date or an Option
Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price
therefor.
13
5.
Conditions to the Underwriters’ Obligations . The
obligations of the Company to issue and sell the Shares to the
Underwriters and the several obligations of the Underwriters to
purchase and pay for the Shares on the Closing Date are subject to
the condition that the Prospectus, as amended or supplemented, in
relation to the Shares, shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act; as of the Closing Date, no stop order suspending
the effectiveness of the Registration
Statement shall be in effect or shall be pending or threatened by
the Commission.
The
several obligations of the Underwriters are subject to the
following further conditions:
(a)
Subsequent
to the execution and delivery of this Agreement and prior to the
Closing Date:
(i)
there
shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
Company’s securities by any “nationally recognized
statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
and
(ii)
there
shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment,
is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus.
(b)
The
Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the effect set fort
|
