Exhibit 1.1
MERITAGE HOMES
CORPORATION
4,000,000
Shares
Common Stock
($.01 Par
Value)
UNDERWRITING
AGREEMENT
April 17,
2008
MERITAGE HOMES
CORPORATION
Common Stock
($.01 Par
Value)
UNDERWRITING
AGREEMENT
April 17, 2008
Citigroup Global
Markets Inc.
Banc of America Securities LLC
J.P. Morgan Securities
Inc.
UBS Securities
LLC
U.S. Bancorp
Investments, Inc.
Wachovia Capital
Markets, LLC
c/o Citigroup Global
Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and
Gentlemen:
Meritage Homes
Corporation, a Maryland corporation (the “
Company ”), proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the
“ Underwriters ”) for whom Citigroup Global
Markets Inc. (“ Citigroup ”) is acting as
representative, an aggregate of 4,000,000 shares (the “
Firm Shares ”) of Common Stock, $.01 par value (the
“ Common Stock ”) of the Company. In
addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 600,000 shares of
Common Stock (the “ Additional Shares
”). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the “
Shares .” The Shares are described in the
Prospectus which is referred to below.
The Company has
filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder
(collectively, the “ Act ”), with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement (the “ Company Registration
Statement ”) on Form S-3 (File No. 333-87398)
including a prospectus, relating to the Shares, which incorporates
by reference documents which the Company has filed or will file in
accordance with the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
(collectively, the “ Exchange Act ”). The
Company has prepared a prospectus supplement (the “
Prospectus Supplement ”) to the prospectus included in
the registration statement referred to above setting forth the
terms of the offering, sale and plan of distribution of the Shares
and additional information concerning the Company and its
business. The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or
more
preliminary prospectuses, containing the prospectus included in the
registration statement referred to above, as supplemented by a
preliminary Prospectus Supplement relating to the Shares, and the
documents incorporated by reference therein (each such preliminary
prospectus being referred to herein as a “ Preliminary
Prospectus ”). Except where the context otherwise
requires, the Company Registration Statement, as amended when it
became effective, including all documents filed as a part thereof
or incorporated by reference therein, and including any information
deemed to be part of the registration statement at the time of its
effectiveness pursuant to Rule 430B under the Act and also
including any registration statement filed pursuant to
Rule 462(b) under the Act, is collectively referred to
herein as the “ Registration Statement ”, and
the prospectus included in the Registration Statement, including
all documents incorporated therein by reference, as supplemented by
the final Prospectus Supplement relating to the Shares, in the form
filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be
required under the Act), are herein collectively called the “
Prospectus ”. As used herein, “
Permitted Free Writing Prospectus ” means each of the
documents listed on Schedule B annexed hereto and each “road
show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a
“written communication” (as defined in Rule 405
under the Act). As used herein, “ Disclosure
Package ” means any Preliminary Prospectus as the same
may be amended or supplemented as of the Applicable Time, together
with any combination of one or more Permitted Free Writing
Prospectuses, if any[, and the price to the public, the number of
Firm Shares and the number of Additional Shares to be included on
the cover page of the Prospectus](1) , as of the
Applicable Time. As used herein, “ General Use
Disclosure Package ” means the Disclosure Package, other
than each “road show” (as defined in Rule 433
under the Act), if any, related to the offering of the Shares
contemplated hereby. As used herein, “ Applicable
Time ” means 5:00 P.M., New York City Time on the
date of this Agreement. Any reference herein to the
Registration Statement, the Prospectus, any Preliminary Prospectus,
any Permitted Free Writing Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference
herein to the terms “ amend ”, “
amendment ”, or “ supplement ” with
respect to the Registration Statement, the Prospectus, any
Preliminary Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this
Agreement, all references to the Registration Statement, the
Prospectus, any Preliminary Prospectus or any Permitted Free
Writing Prospectus or to any amendment or supplement thereto shall
be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“ EDGAR ”).
The Company and
the Underwriters agree as follows:
1.
Sale and Purchase . Upon the basis of the warranties
and representations and subject to the terms and conditions herein
set forth, the Company agrees to sell to the respective
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Underwriters
and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the respective number of Firm Shares
(subject to adjustment as you may determine to avoid fractional
shares) set forth opposite the name of such Underwriter in
Schedule A annexed hereto at a purchase price of
$19.3725 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the execution
and delivery of this Agreement as in your judgment is advisable and
(ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase
or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the
Company hereby grants to the several Underwriters the option to
purchase, and upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not
jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them (subject to such
adjustment as you shall determine to avoid fractional shares), all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm
Shares, at the same purchase price per Share to be paid by the
Underwriters to the Company for the Firm Shares. This option
may be exercised by you on behalf of the several Underwriters at
any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company.
Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and
time when the Additional Shares are to be delivered (such date and
time being herein referred to as the “ Additional Time of
Purchase ”); provided , however , that the
Additional Time of Purchase shall not be earlier than the Time of
Purchase (as defined below) nor earlier than the second business
day after the date on which the option shall have been exercised
nor later than the tenth business day after the date on which the
option shall have been exercised. As used herein
“business day” shall mean a day on which the New York
Stock Exchange is open for trading. The number of Additional
Shares to be sold to each Underwriter shall be the number which
bears the same proportion to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A
hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate
fractional shares).
2.
Payment and Delivery . Payment of the purchase price
for the Firm Shares shall be made to the Company by Federal Funds
wire transfer against delivery of the certificates for the Firm
Shares to you through the facilities of the Depository Trust
Company (“ DTC ”) for the respective accounts of
the Underwriters. Such payment and delivery shall be made at
10:00 A.M., New York City time, on April 23, 2008 (unless
another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 10
hereof). The time at which such payments and delivery are
actually made is hereinafter referred to as the “ Time of
Purchase ”. Certificates for the Firm Shares shall
be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second
business day preceding the Time of Purchase. For the purpose
of expediting the checking of the certificates for the Firm Shares
by you, the Company agrees to make such certificates available to
you for such purpose at least one full business day preceding the
Time of Purchase.
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Payment of the
purchase price for the Additional Shares shall be made to the
Company at the Additional Time of Purchase in the same manner and
at the same office as the payment for the Firm Shares.
Certificates for the Additional Shares shall be delivered to you by
the Company in definitive form in such names and in such
denominations as you shall specify no later than the second
business day preceding the Additional Time of Purchase. For
the purpose of expediting the checking of the certificates for the
Additional Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full
business day preceding the Additional Time of Purchase.
3.
Representations and Warranties of the Company . The
Company represents and warrants to each of the Underwriters
that:
(a)
The Company Registration Statement became effective under the Act
on May 14, 2002 and the conditions to the use of Form S-3
have been satisfied. No order of the Commission preventing or
suspending the use of any Preliminary Prospectus or Permitted Free
Writing Prospectus has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the Company,
are contemplated by the Commission; each Preliminary Prospectus and
each Permitted Free Writing Prospectus, at the time of filing
thereof with the Commission, conformed in all material respects to
the requirements of the Act; as of the Applicable Time, at the Time
of Purchase and at each Additional Time of Purchase, the Disclosure
Package did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the Prospectus will
comply, as of its date, the date that it is filed with the
Commission, the Time of Purchase and each Additional Time of
Purchase, if any, in all material respects, with the requirements
of the Act (including, without limitation,
Section 10(a) of the Act); as of its date, the date that
it is filed with the Commission, the Time of Purchase and each
Additional Time of Purchase, if any, the Prospectus, as then
amended or supplemented, did not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the
Registration Statement complied, when it became effective, complies
and will comply in all material respects with the provisions of the
Act; and any statutes, regulations, contracts, governmental
proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
have been and will be so described or filed; the Registration
Statement did not, when it became effective, does not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that the Company makes no warranty or
representation with respect to any statement contained in the
Disclosure Package, the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the
Disclosure Package, the Registration Statement or the Prospectus;
and the Company has not distributed any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus, any Permitted
Free Writing Prospectus, the Prospectus or any
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other materials, if
any, permitted by the Act. Each Permitted Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified; provided , however , that the Company
makes no warranty or representation with respect to any statements
in or omissions from any Permitted Free Writing Prospectus based
upon and in conformity with written information furnished to the
Company by any Underwriter through you specifically for use
therein.
(b)
prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Preliminary Prospectuses and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is so sent or
given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was,
if required pursuant to Rule 433(d) under the Act, filed
with the Commission), the sending or giving, by any Underwriter, of
any Permitted Free Writing Prospectus will satisfy the provisions
of Rule 164 or Rule 433 (without reliance on subsections
(b), (c) and (d) of Rule 164); the conditions set
forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied,
and the Registration Statement relating to the offering of the
Shares contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; the Company is not disqualified, by
reason of subsection (f) or (g) of Rule 164 under
the Act, from using, in connection with the offer and sale of the
Shares, “free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433
under the Act; the Company is not an “ineligible
issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and
433 under the Act with respect to the offering of the Shares
contemplated by the Registration Statement; the parties hereto
agree and understand that the content of any and all “road
shows” (as defined in Rule 433 under the Act) related to
the offering of the Shares contemplated hereby is solely the
property of the Company.
(c)
As of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled
“Actual” in the section of the Registration Statement,
the Disclosure package and the Prospectus entitled
“Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus) and, as of the Time of Purchase, the Company shall have
an authorized capitalization as set forth under the heading
entitled “As Adjusted” in the section of the
Registration Statement, the Disclosure Package and the Prospectus
entitled “Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus). All of the issued and outstanding shares of
capital stock or other equity interests of the Company have been
duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or
similar right. Attached as Exhibit A is a true
and complete list of each entity in which the Company has, or will
have
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as of the Time of
Purchase, a direct or indirect majority equity or voting interest,
their jurisdictions of incorporation or formation, their
stockholders, partners or members and percentage equity ownership
by the Company. The term “ Subsidiaries ”
as used herein shall refer to all of the subsidiaries listed on
Exhibit A hereto. All of the issued and
outstanding shares of capital stock or other equity interests of
each of the Subsidiaries have been duly and validly authorized and
issued, are fully paid and nonassessable, were not issued in
violation of any preemptive or similar right and, except as set
forth in the Registration Statement, the Disclosure Package and the
Prospectus or on Exhibit A hereto, are owned, directly
or indirectly, by the Company free and clear of all liens.
Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, there are no outstanding options,
warrants or other rights to acquire or purchase, or instruments
convertible into or exchangeable for, any shares of capital stock
of any of the Company or any of the Subsidiaries.
(d)
Each of the Company and the 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, limited
liability company, partnership or other similar power and
authority, and has all governmental licenses, authorizations,
consents and approvals necessary to own its property and carry on
its business as now being conducted, except if the failure to
obtain any such license, authorization, consent and approval would
not, individually or in the aggregate, have a Material Adverse
Effect; 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 makes such qualification necessary and where
failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse
Effect. A “ Material Adverse Effect ”
means any material adverse effect on the business, condition
(financial or other), results of operations, performance,
properties or prospects of the Company and the Subsidiaries, taken
as a whole.
(e)
The Company has all requisite corporate power and authority to
execute, deliver and perform all of its obligations under this
Agreement and to consummate the transactions contemplated
hereby.
(f)
This Agreement has been duly and validly executed and delivered by
the Company.
(g)
The capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the
Registration Statement, the Disclosure Package and the Prospectus;
the certificates for the Shares are in due and proper form, and the
holders of the Shares will not be subject to personal liability by
reason of being such holders.
(h)
The Shares have been duly and validly authorized and, in the case
of the Shares to be sold by the Company, when issued and, in each
case, when delivered against payment therefor as provided herein,
will be duly and validly issued and fully paid and
nonassessable.
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(i)
No shareholder approval and no approval, authorization, consent or
order of or filing with any national, state or local governmental
or regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the Shares or
the consummation by the Company of the transaction as contemplated
hereby other than (A) such as have been or will be obtained or
made on or prior to the Time of Purchase, (B) registration of
the offer and sale of the Shares under the Act, which has been
effected as described herein, (C) such approvals as have been
obtained (or will be obtained prior to the Time of Purchase) in
connection with the listing of the Shares on the NYSE, (D) any
necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by
the Underwriters or under the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“
FINRA ”), and any approvals, authorizations, consents
or orders the failure to obtain or make would not adversely affect
consummation of the transactions contemplated by this
Agreement.
(j)
Except as described in the Registration Statement, the Disclosure
Package and the Prospectus, no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of capital stock or other equity interests as a result of
the filing or effectiveness of the Registration Statement or the
sale of Shares to the Underwriters contemplated thereby, nor does
any person have preemptive rights, co-sale rights, rights of first
refusal or other rights to purchase any of the Shares other than
those that have been expressly waived prior to the date hereof.
(k)
All taxes, fees and other governmental charges that are due and
payable on or prior to the Time of Purchase in connection with the
execution, delivery and performance of this Agreement and the
delivery and sale of the Shares shall have been paid by or on
behalf of the Company at or prior to the Time of Purchase.
(l)
None of the Company or any Subsidiary is (A) in violation of
its charter, bylaws or other constitutive 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 to which any of them
is a party or by which any of them is bound or to which any of
their assets or properties is subject (collectively, “
Agreements and Instruments ”), (C) in violation
of any law, statute, rule or regulation applicable to the
Company or any Subsidiary or their respective assets or properties
or (D) in violation of any judgment, order or decree of any
domestic or foreign court or governmental agency or authority
having jurisdiction over the Company or any Subsidiary or their
respective assets or properties, which in the case of clauses (B),
(C) and (D) herein, individually or in the aggregate,
could have a Material Adverse Effect.
(m)
The execution, delivery and performance by the Company of this
Agreement, including the consummation of the offer and sale of the
Shares, does not and will not violate, conflict with or constitute
a breach of any of the terms or provisions of or a default (or an
event that with notice or lapse of time or both, would constitute a
default) under, or require consent under, or result in the creation
or imposition of a lien, charge or
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encumbrance on any
property or assets of the Company or any Subsidiary pursuant to
(A) the charter, bylaws or other constitutive documents of any
of the Company or any Subsidiary, (B) any of the Agreements
and Instruments, except as would not have a Material Adverse
Effect, (C) any law, statute, rule or regulation
applicable to the Company or any Subsidiary or their respective
assets or properties or (D) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority
having jurisdiction over the Company or any Subsidiary or their
respective assets or properties.
(n)
Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, there is (A) no action, suit or
proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to
the knowledge of the Company, threatened or contemplated, to which
the Company or any Subsidiary is or may be a party or to which the
business, assets or property of such person is or may be subject,
(B) no statute, rule, regulation or order that has been
enacted, adopted or issued or, to the knowledge of the Company,
that has been proposed by any governmental body or agency, domestic
or foreign, (C) no injunction, restraining order or order of
any nature by a federal or state court or foreign court of
competent jurisdiction to which the Company or any Subsidiary is or
may be subject that (x) in the case of
clause (A) above, if determined adversely to the Company
or any Subsidiary, could, individually or in the aggregate,
(1) have a Material Adverse Effect or (2) interfere with
or adversely affect the issuance of the Shares in any jurisdiction
or adversely affect the consummation of the transactions
contemplated hereby and (y) in the case of clauses
(B) and (C) above, could, individually or in the
(1) have a Material Adverse Effect or (2) interfere with
or adversely affect the issuance of the Shares in any jurisdiction
or adversely affect the consummation of the transactions
contemplated hereby. Every request of any securities
authority or agency of any jurisdiction for additional information
with respect to the Shares that has been received by the Company or
any Subsidiary or their counsel prior to the date hereof has been,
or will prior to the Time of Purchase be, complied with in all
material respects.
(o)
Except as would not have a Material Adverse Effect, no labor
problem or dispute with the employees of the Company or any of the
Subsidiaries exists or, to the knowledge of the Company, is
threatened.
(p)
Except as described in the Registration Statement, the Disclosure
Package and the Prospectus, the Company and each Subsidiary
(A) is in compliance with, or not subject to costs or
liabilities for violations under, laws, regulations, rules of
common law, orders and decrees, as in effect as of the date hereof,
and any present judgments and injunctions issued or promulgated
thereunder, relating to pollution or protection of public and
employee health and safety, emissions, discharges, releases or
threatened releases of hazardous or toxic substances or wastes into
the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata),
pollutants or contaminants applicable to it or its business or
operations or ownership or use of its property (including, but not
limited to, the (i) the manufacture, processing, distribution,
use, generation, treatment, storage, disposal, transport or
handling of hazardous materials, and (ii) underground and
above ground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom) (“
Environmental
8
Laws ”),
other than noncompliance or such costs or liabilities that,
individually or in the aggregate, would not have a Material Adverse
Effect, and (B) possesses all permits, licenses or other
approvals required under applicable Environmental Laws, except
where the failure to possess any such permit, license or other
approval would not have, either individually or in the aggregate, a
Material Adverse Effect. All currently pending and, to the
knowledge of the Company, threatened proceedings, notices of
violation, demands, notices of potential responsibility or
liability, suits and existing environmental conditions by any
governmental authority which could result in a Material Adverse
Effect are fully and accurately described in all material respects
in the Registration Statement, the Disclosure Package and the
Prospectus.
(q)
The Company and each Subsidiary have (A) all licenses,
certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with,
all applicable authorities, all self-regulatory authorities and all
courts and other tribunals (each, a “ License
”), necessary to engage in the business conducted by it in
the manner described in the Registration Statement, the Disclosure
Package and the Prospectus, except where failure to hold such
Licenses would not, individually or in the aggregate, have a
Material Adverse Effect, and (B) no reason to believe that any
governmental body or agency, domestic or foreign, is considering
limiting, suspending or revoking any such License, except where any
such limitations, suspensions or revocations would not,
individually or in the aggregate, have a Material Adverse
Effect. All such Licenses are valid and in full force and
effect and the Company and each Subsidiary are in compliance in all
material respects with the terms and conditions of all such
Licenses and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Licenses,
except for any invalidity, failure to be in full force and effect
or noncompliance with any License that would not, individually or
in the aggregate, have a Material Adverse Effect.
(r)
The Company and each Subsidiary have valid title in fee simple to
all items of real property and valid title to all personal property
owned by each of them (excluding land banks, homeowners’
associations, golf clubs and district properties) described in the
Registration Statement, the Disclosure Package and the Prospectus,
in each case free and clear of any pledge, lien, encumbrance,
security interest or other defect or claim of any third party,
except (i) such as do not materially and adversely affect the
value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such
Subsidiary to an extent that such interference could have a
Material Adverse Effect, and (ii) liens securing debt
described in the Registration Statement, the Disclosure Package and
the Prospectus. Any real property and buildings held under
lease by the Company or any such Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as do not
materially interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiary.
(s)
Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, the Company and each Subsidiary owns,
possesses or has the right to employ all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential
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information, systems or
procedures), trademarks, service marks and trade names
(collectively, the “ Intellectual Property ”)
necessary to conduct the businesses operated by it as described in
the Registration Statement, the Disclosure Package and the
Prospectus, except where the failure to own, possess or have the
right to employ such Intellectual Property would not have a
Material Adverse Effect. Except as set forth in the
Registration Statement, the Disclosure Package and the Prospectus,
none of the Company or any Subsidiary has received any notice of
infringement of or conflict with (and none of them knows of any
such infringement or a conflict with) asserted rights of others
with respect to any of the foregoing that, if such assertion of
infringement or conflict were sustained, could have a Material
Adverse Effect. Except as set forth in the Registration
Statement, the Disclosure Package and the Prospectus, the use of
the Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not infringe on
the rights of any person, except for such infringement as would not
have a Material Adverse Effect.
(t)
All material tax returns required to be filed by the Company and
each Subsidiary have been filed in all jurisdictions where such
returns are required to be filed, except where valid extensions
have been obtained; and all taxes, including withholding, value
added and franchise taxes, penalties and interest, assessments,
fees and other charges that are due and payable have been paid (or,
with respect to those based on good faith estimates, have been paid
to the extent of such estimates), other than those being contested
in good faith and for which reserves have been provided in
accordance with generally accepted accounting principles or those
currently payable without penalty or interest and except where the
failure to make such required filings or payments would not,
individually or in the aggregate, have a Material Adverse
Effect. To the knowledge of the Company, there are no
material proposed additional tax assessments against any of the
Company and the Subsidiaries or their assets or property.
(u)
None of the Company or the Subsidiaries has any liability for any
prohibited transaction or accumulated funding deficiency (within
the meaning of Section 412 of the Internal Revenue Code of
1986, as amended) or any complete or partial withdrawal liability
with respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974, as
amended (“ ERISA ”), to which the Company or any
Subsidiary makes or ever has made a contribution and in which any
employee of the Company or any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each
Subsidiary are in compliance in all material respects with all
applicable provisions of ERISA.
(v)
None of the Company or any Subsidiary is an “investment
company” or a company “controlled” by an
“investment company” incorporated in the United States
within the meaning of the Investment Company Act of 1940, as
amended.
(w)
Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, the Company and each Subsidiary
maintains 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 its financial statements
10
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 its
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(x)
(i) the Company and each Subsidiary has established and
maintains disclosure controls and procedures (as such term is
defined in Rules 13a-14 and 15d-14 under the Exchange Act);
(ii) such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; (iii) the Company has disclosed, based on the
most recent evaluation of its Chief Executive Officer and its Chief
Financial Officer, prior to the date hereof, to the Company’s
auditors and the Audit Committee of the Board of Directors:
(x) any significant deficiencies in the design or operation of
internal controls that are reasonably expected to adversely affect
the Company’s ability to record, process, summarize, and
report financial data; and (y) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal controls;
(iv) any material weaknesses in internal controls have been
identified for the Company’s auditors; and (v) since the
date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses, except, in the
case of clauses (i), (ii) and (v), as set forth in the
Registration Statement, the Disclosure Package and the
Prospectus.
(y)
The Company and any of the officers and directors of the Company,
in their capacities as such, are in compliance in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated thereunder.
(z)
The Company and each Subsidiary maintains insurance covering their
properties, assets, operations, personnel and businesses, and, in
the good faith estimate of management, such insurance is of such
type and in such amounts as is in accordance with customary
industry practice in the locations where the Company and each
Subsidiary conduct operations, taking into account the costs and
availability of such insurance.
(aa)
Deloitte & Touche LLP is a registered independent
accounting firm with respect to the Company within the
meaning of the Act. The historical financial statements,
including any amendment thereto, and the notes thereto included in
the Registration Statement, the Disclosure Package and the
Prospectus present fairly in all material respects the consolidated
financial position and results of operations of the Company and the
Subsidiaries at the respective dates and for the respective periods
indicated. Such financial statements comply as to form in all
material respects with the applicable requirements of Regulation
S-X promulgated under the Exchange Act and have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods presented (except as
disclosed in the Registration Statement, the
11
Disclosure Package and
the Prospectus). The other financial and statistical
information and data included in the Registration Statement, the
Disclosure Package and the Prospectus are accurately presented in
all material respects and prepared on a basis consistent with the
financial statements and the books and records of the Company and
the Subsidiaries.
(bb)
Except as described in the section entitled
“Underwriting” in the Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings
between the Company or any Subsidiary and any other person other
than the Underwriters that would give rise to a valid claim against
the Company, any Subsidiary or the Underwriters for a brokerage
commission, finder’s fee or like payment in connection with
the issuance, purchase and sale of the Shares.
(cc)
The statistical and market-related data included in the
Registration Statement, the Disclosure Package and the Prospectus
are based on or derived from sources that the Company believes to
be reliable and accurate in all material respects and represent its
good faith estimates that are made on the basis of data derived
from such sources.
(dd)
The Company has obtained (or will obtain prior to the Time of
Purchase) the written agreement in substantially the form attached
hereto as Exhibit B (the “ Lock-Up Letter
Agreement ”) of each of the Company’s directors and
executive officers.
(ee)
Neither the Company nor any of the Subsidiaries has either sent or
received any notice of termination of any of the contracts or
agreements expressly referred to or described in the Prospectus,
and no such termination has been threatened by the Company or any
of the Subsidiaries or, to the knowledge of the Company, any other
party to any such contract or agreement.
(ff)
Neither the Company nor any of the Subsidiaries or any of their
respective directors and officers has taken, directly or
indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares.
(gg)
The Company has not distributed and will not distribute, prior to
the later of the Additional Time of Purchase and the completion of
the Underwriters’ distribution of the Shares, any offering
material in connection with the offering and sale of the Shares
other than any Preliminary Prospectus, the Prospectus, the
Registration Statement or any Permitted Free Writing
Prospectus.
(hh)
The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is listed on the
New York Stock Exchange (“ NYSE ”), and 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 delisting the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or
the NYSE is contemplating terminating such registration or
listing.
12
(ii)
Any certificate signed by an officer of the Company or any
Subsidiary delivered to you or to counsel for the Underwriters
pursuant to this Agreement or in connection with the Closing
contemplated hereby shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby.
(jj)
Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Subsidiaries is aware of or
has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder
(the “ FCPA ”), including, without limitation,
making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, its
Subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA in all
material respects and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(kk)
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 and the money laundering
statutes and the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Money Laundering Laws ”) in all material
respects and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(ll)
Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Subsidiaries is currently
subject to any 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.
4.
[Intentionally Omitted.]
5.
Certain Covenants of the Company . The Company hereby
agrees:
(a)
to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and
to maintain such qualifications in effect so long as
13
required for the
distribution of the Shares; provided that the Company shall
not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose;
(b)
to make available to the Underwriters in New York City, as soon as
practicable after the execution and delivery of this Agreement and
thereafter from time to time to furnish to the Underwriters, as
many copies of the Disclosure Package and the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have
made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriters may rea
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