Exhibit 1.1
UNDERWRITING AGREEMENT
BURGER KING HOLDINGS, INC.
15,000,000 Shares of Common Stock
May 5, 2008
Goldman,
Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies
and Gentlemen:
Each of the stockholders listed on
Schedule 1 hereto (each a “ Selling Stockholder
” and, together, the “ Selling Stockholders
”) proposes to sell, severally and not jointly, to Goldman,
Sachs & Co. (the “ Underwriter ”) 15,000,000
shares of common stock, par value $0.01 per share, of Burger King
Holdings, Inc., a Delaware corporation (the “ Company
” and such shares, the “ Shares ”), as set
forth on Schedule 1 hereto. The common stock of the Company is
herein referred to as the “ Stock .”
The Company and the Selling
Stockholders hereby confirm their agreement with the Underwriter
concerning the purchase and sale of the Shares, as follows:
1.
Registration Statement . The Company meets the requirements
for use of Form S-3 under the Securities Act (as defined below) and
has prepared and filed with the Securities and Exchange Commission
(the “ Commission ”) under the Securities Act of
1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “ Securities Act
”), an automatic shelf registration statement (as defined in
Rule 405 of the Securities Act) on Form S-3 (File
No. 333-150648) including a base prospectus, relating to the
Shares. Such Registration Statement (as defined below) and any
post-effective amendment thereto became effective upon filing. The
Company will file with the Commission a final prospectus supplement
relating to the Shares in accordance with Rule 424(b) of the
Securities Act. As filed, such final prospectus supplement shall
contain all information required by the Securities Act, and, except
to the extent the Underwriter shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the date and time that this Agreement is
executed and delivered to the parties hereto (the “
Execution Time ”) or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base
Prospectus, as defined below) as the Company has advised you, prior
to the Execution Time, will be included or made therein, (as used
herein, the term “ Registration Statement ”
shall mean the registration statement referred
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to
above, including exhibits and financial statements and any
prospectus supplement relating to the Shares that is filed with the
Commission pursuant to Rule 424(b) of the Securities Act and deemed
part of such registration statement pursuant to Rule 430B of
the Securities Act, as amended on each Effective Date (as defined
below) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as defined below),
shall also mean such registration statement as so amended; the base
prospectus filed as part of the Registration Statement, in the form
in which it has most recently been filed with the Commission on or
prior to the Execution Time, is hereinafter called the “
Base Prospectus ”; the prospectus supplement relating
to the Shares that was first filed pursuant to Rule 424(b) of the
Securities Act after the Execution Time, together with the Base
Prospectus is hereinafter called the “ Final
Prospectus ”; any reference herein to the Base Prospectus
or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Base Prospectus or
the Final Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) of the Securities Act and any
documents filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ Exchange Act ”), and
incorporated therein, in each case after the date of the Base
Prospectus or the Final Prospectus, as the case may be). The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(i) of the Securities
Act.
Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Registration Statement and the Base Prospectus.
At or prior to the time when sales of
the Shares were first made (the “ Time of Sale
”), the Company had prepared the following information
(collectively with the pricing information set forth on Annex
A , the “ Time of Sale Information ”): the
Base Prospectus and each “free-writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act) listed
on Annex A hereto.
2.
Purchase of the Shares by the Underwriter . (a) The
Selling Stockholders agree, severally and not jointly, to sell the
Shares to the Underwriter as provided in this Agreement, and the
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees to purchase from the Selling Stockholders the Shares
at a price per share of $27.41 (the “ Purchase Price
”).
(b) The Company and the Selling
Stockholders understand that the Underwriter intends to make a
public offering of the Shares as soon after the Execution Time as
in the judgment of the Underwriter is advisable, and to offer the
Shares on the terms set forth in the Final Prospectus. The Company
and the Selling Stockholders acknowledge and agree that the
Underwriter may offer and sell Shares to or through any affiliate
of the Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through the Underwriter.
(c) Payment for the Shares shall
be made by wire transfer in immediately available funds to the
accounts specified by the Custodian to the Underwriter at the New
York City offices of Cleary Gottlieb Steen & Hamilton LLP at
10:00 A.M. New York City time on May 8, 2008, or at such
other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Underwriter and the
Selling Stockholders may agree upon in writing. The time and date
of such payment for the Shares is referred to herein as the “
Closing Date ”.
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Payment for the Shares to be
purchased on the Closing Date shall be made against delivery to the
Underwriter of the Shares to be purchased on such date in
definitive form registered in such names and in such denominations
as the Underwriter shall request in writing not later than two full
business days prior to the Closing Date with any transfer taxes
payable in connection with the sale of the Shares duly paid by the
Selling Stockholders. The Shares to be purchased on the Closing
Date shall be delivered by or on behalf of the Underwriter through
the facilities of The Depository Trust Company (“ DTC
”) against payment by or on behalf of the Underwriter of the
Purchase Price therefor by wire transfer of federal (same-day)
funds to the accounts specified by the Selling Stockholders to the
Underwriter at least two full business days prior to the Closing
Date. The Selling Stockholders will cause any certificate(s)
representing the Shares to be made available for checking and
packaging at least 24 hours prior to the Closing Date with respect
thereto at the offices of DTC or its designated custodian.
(d) Each of the Company and the
Selling Stockholders acknowledges and agrees that the Underwriter
is acting solely in the capacity of an arm’s length
contractual counterparty to the Company and the Selling
Stockholders with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, any of the Selling Stockholders or any other
person. Additionally, the Underwriter is not advising the Company,
any of the Selling Stockholders or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company and the Selling Stockholders shall
consult with their own advisors concerning such matters and shall
be responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and the
Underwriter shall have no responsibility or liability to the
Company or the Selling Stockholders with respect thereto. Any
review by the Underwriter of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and
shall not be on behalf of the Company or the Selling
Stockholders.
3.
Representations and Warranties of the Company . The Company
represents and warrants to the Underwriter and each Selling
Stockholder that:
(a)
Preliminary Prospectus Supplement . [Reserved]
(b)
Time of Sale Information. The Time of Sale Information at
the Time of Sale did not, and at the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in such Time of Sale Information.
No statement of material fact included in the Final Prospectus has
been omitted from the Time of Sale Information and no statement of
material fact included in the Time of Sale Information that is
required to be included in the Final Prospectus has been omitted
therefrom.
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(c) The
documents incorporated by reference in the Base Prospectus, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none
of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Final Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, 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 that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the Execution
Time.
(d)
Issuer Free Writing Prospectus. Other than the Final
Prospectus, the Company (including its agents and representatives,
other than the Underwriter in its capacity as such) has not made,
used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication
by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an “
Issuer Free Writing Prospectus ”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on
Annex A hereto and other written communications approved in
writing in advance by the Underwriter. Each such Issuer Free
Writing Prospectus complied in all material respects with the
Securities Act, has been filed in accordance with the Securities
Act (to the extent required thereby) and, when taken together with
the Base Prospectus, such Issuer Free Writing Prospectus, did not,
and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in any Issuer Free Writing
Prospectus. No order preventing or suspending the use of any Issuer
Free Writing Prospectus has been issued by the Commission.
(e)
Registration Statement and Final Prospectus. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; on each date and time that the Registration
Statement and any post-effective amendment or amendments thereto
became or becomes effective (each an “ Effective Date
”), the Registration Statement complied and will comply in
all material respects with the Securities Act, and on each
Effective Date and at the Execution Time, the Registration
Statement did not and, as amended or supplemented, if
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applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; as of the date when the Final Prospectus is first filed
in accordance with Rule 424(b) of the Securities Act and on the
Closing Date, the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act; and as of
the date of the Final Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Final Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use in the
Registration Statement and the Final Prospectus and any amendment
or supplement thereto.
(f)
(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) of the Securities
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), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) of the Securities Act made
any offer relating to the Shares in reliance on the exemption in
Rule 163 of the Securities Act, and (iv) at the Execution
Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case
may be) a “well-known seasoned issuer” as defined in
Rule 405 of the Securities Act. The Company agrees to pay the
fees required by the Commission relating to the Shares within the
time required by Rule 456(b)(1) of the Securities Act without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Securities Act.
(g)
Financial Statements. The financial statements and the
related notes thereto of the Company and its consolidated
subsidiaries included in the Registration Statement, the Time of
Sale Information and the Final Prospectus comply in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial
position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules, if any,
included in the Registration Statement present fairly the
information required to be stated therein; and the other financial
information included in the Registration Statement, the Time of
Sale Information and the Final Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby.
(h)
No Material Adverse Change. Since the date of the most
recent financial statements of the Company included in the
Registration Statement, the Time of Sale Information and the Final
Prospectus, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development involving a
prospective material adverse change, in
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or
affecting the business, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any loss from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, which is material to the Company and its
subsidiaries taken as a whole, except in each case as otherwise
disclosed in the Time of Sale Information and the Final Prospectus,
and except, in the case of clause (i) above, for
(A) issuances of options to purchase the Company’s
common stock pursuant to any equity incentive plan existing on the
date hereof; and (B) issuances of shares of the
Company’s common stock upon the exercise of an option or
warrant, the settlement of a restricted stock unit award,
performance share award and deferred stock award or the conversion
of a security outstanding on the date hereof; and (C) any
repurchases by the Company of the Company’s common stock
under the Company’s existing $100 million share
repurchase program either in the open market or under a
Rule 10b5-1 trading plan.
(i)
Organization and Good Standing. The Company and each of its
domestic subsidiaries (excluding BK Family Fund, Inc., Have it Your
Way Foundation, Inc. and The Melodie Corporation, the “
Domestic Subsidiaries ”), BK Asiapac, Pte. Ltd. and
Burger King Europe GmBH (together with BK Asiapac, Pte. Ltd., the
“ Foreign IP Subsidiaries ”) have been duly
organized and are validly existing and in good standing (or the
equivalent in their respective jurisdictions of organization),
under the laws of their respective jurisdictions of organization,
are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on
the business, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries
taken as a whole (a “ Material Adverse Effect
”). The subsidiaries listed in Schedule 2 to this
Agreement (the “ Significant Subsidiaries ”) are
the only significant subsidiaries of the Company.
(j)
Capitalization. The Company has an authorized capital stock
as set forth in the the Time of Sale Information and the Final
Prospectus under the heading “Capitalization”; all the
outstanding shares of capital stock of the Company (including the
Shares to be sold by the Selling Stockholders) have been duly and
validly authorized and issued and are fully paid and non-assessable
and are not subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Time of Sale
Information and the Final Prospectus and except for issuances of
options to purchase the Company’s common stock, restricted
stock unit awards, performance share awards and deferred stock
awards pursuant to an equity incentive plan existing on the date
hereof, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding
or arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable
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securities or any such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Time of Sale Information and
the Final Prospectus; and all the outstanding shares of capital
stock or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid
and non-assessable (except, in the case of any foreign subsidiary,
for directors’ qualifying shares and except as otherwise
described in the Time of Sale Information and the Final Prospectus)
and, except as described in the Time of Sale Information and the
Final Prospectus, are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party, other than any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party created under the Amended and Restated Credit Agreement dated
as of February 15, 2006 among the Company, Burger King
Corporation, as Borrower, the Lender Parties thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent, Citicorp North America,
Inc. as Syndication Agent, and Bank of America, N.A., RBC Capital
Markets and Wachovia Bank, National Association, as Documentation
Agents.
(k)
Due Authorization. The Company has full right, power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(m)
The Shares. The Shares to be sold by the Selling
Stockholders hereunder have been duly authorized by the Company,
are fully paid and nonassessable and conform to the descriptions
thereof in the Time of Sale Information and the Final
Prospectus.
(n)
No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject; or (iii) in
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(o)
No Conflicts. The execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions
contemplated by this Agreement will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or by-laws or
similar organizational documents of the Company or any of its
Significant Subsidiaries or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except in the case of clauses (i) and (iii) above for any such
conflict, breach or violation that could not, individually or in
the aggregate, be reasonably expected to have a Material Adverse
Effect.
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(p)
No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for
the execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated by
this Agreement, except for (i) the registration of the Shares
under the Securities Act, (ii) such as have already been
obtained or as may be required by the rules of The New York Stock
Exchange or the Financial Industry Regulatory Authority (“
FINRA ”), and (iii) such consents, approvals,
authorizations, orders and registrations or qualifications as may
be required under applicable foreign or state securities laws, in
connection with the purchase and distribution of the Shares to be
sold by the Selling Stockholders hereunder by the
Underwriter.
(q)
Legal Proceedings. Except as described in the Time of Sale
Information and the Final Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or
in the aggregate, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the ability of
the Company to perform its obligations under this Agreement; to the
knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened against or affecting the Company or any
of its subsidiaries; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Time of Sale Information and the Final Prospectus that are not so
described in such documents and (ii) there are no statutes,
regulations or contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration
Statement or described in the Time of Sale Information or the Final
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Time of Sale Information and the
Final Prospectus.
(r)
Independent Accountants. KPMG LLP, who has certified certain
financial statements of the Company and its subsidiaries, is an
independent registered public accounting firm with respect to the
Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(s)
Title to Real and Personal Property. The Company and its
subsidiaries have good and marketable title in fee simple to, or
have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of
title except those that (i) do not materially interfere with
the use made and proposed to be made of such property by the
Company and its subsidiaries or (ii) could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
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(t)
Title to Intellectual Property. The Company and its
subsidiaries (i) own or possess adequate rights to use all
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
their respective businesses, and (ii) the conduct of their
respective businesses will not conflict with any such rights of
others; except as could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(u)
No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act
to be described in the Time of Sale Information and the Final
Prospectus and that is not so described in such documents.
(v)
Investment Company Act. The Company is not required to
register as an “investment company” within the meaning
of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder (collectively, “
Investment Company Act ”).
(w)
Taxes. The Company and its subsidiaries have paid all
federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof except where
such failure to pay or file would not reasonably be expected to
have a Material Adverse Effect.
(x)
Licenses and Permits. The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Time of Sale
Information and the Final Prospectus, except where the failure to
possess or make the same would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect; and except as described in the Time of Sale Information and
the Final Prospectus, neither the Company nor any of its
subsidiaries has received notice of any revocation or modification
of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary course, except
where such revocation, modification or failure to renew would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(y)
No Labor Disputes. No material labor disturbance by or
dispute with employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company or any of its
subsidiaries, is threatened. The Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, except as would not reasonably
be expected to have a Material Adverse Effect.
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(z)
Compliance With Environmental Laws. (i) The Company and
its subsidiaries (x) are in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(collectively, “ Environmental Laws ”);
(y) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct
their respective businesses; and (z) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, and
(ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (x), (y), (z) and
(ii) above, for any such failure to comply, or failure to
receive required permits, licenses or approvals, or cost or
liability, as would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(aa)
Compliance With ERISA. Each employee benefit plan, within
the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”),
that is maintained, administered or contributed to by the Company
or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued
but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions; except in each case as would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(bb)
Disclosure Controls . The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management, including its
principal executive and principal financial officers, or persons
performing similar functions, as appropriate to allow timely
decisions regarding required disclosure. The Company’s
disclosure controls and procedures have been evaluated for
effectiveness as of March 31, 2008 and are effective in all
material respects to perform the functions for which they were
established.
10
(cc)
Accounting Controls. The Company and its subsidiaries
maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) that have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles,
including, but not limited to 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 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.
(dd)
Insurance. The Company and its subsidiaries maintain
(i) insurance with financially sound and reputable insurance
companies covering their respective properties, operations,
personnel and businesses, including business interruption
insurance, which insurance is in amounts (with no greater risk
retention or self-insurance levels) and against such risks as
(a) would be reasonably maintained by a company of established
repute engaged in the same or similar business operating in the
same or similar locations and (b) considered adequate by the
Company and its subsidiaries and (ii) all insurance as may be
required by law; and neither the Company nor any of its
subsidiaries has (x) received notice from any insurer or agent
of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such
insurance or (y) any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its
business.
(ee)
No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or
(iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ff)
Compliance with Money Laundering Laws . The operations of
the Company and its subsidiaries are and have been conducted since
July 1, 2002 in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(gg)
Compliance with OFAC. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”).
11
(hh)
No Restrictions on Subsidiaries . Except as disclosed in the
Time of Sale Information and the Final Prospectus or except as
prohibited under applicable foreign law with respect to the foreign
Significant Subsidiaries, no Significant Subsidiary of the Company
is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other
distribution on such Significant Subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
Significant Subsidiary from the Company or from transferring any of
such Significant Subsidiary’s properties or assets to the
Company or any other Significant Subsidiary of the Company.
(ii)
No Broker’s Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to
a valid claim against the Company or any of its subsidiaries or the
Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the Shares to
be sold by the Selling Stockholders hereunder.
(jj)
No Registration Rights . Except as disclosed in the
Registration Statement, no person has the right to require the
Company or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the sale of the
Shares to be sold by the Selling Stockholders hereunder.
(kk)
No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of
the price of the Stock.
(ll)
Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Time of Sale
Information and the Final Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(mm)
Statistical and Market Data. Nothing has come to the
attention of the Company that has caused the Company to believe
that the statistical and market-related data included in the Time
of Sale Information and the Final Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(nn)
Sarbanes-Oxley Act . There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes-Oxley
Act ”) to which the Company is subject.
(oo)
Status under the Securities Act . The Company is not an
ineligible issuer as defined under the Securities Act, in each case
at the times specified in the Securities Act in connection with the
offering of the Shares.
12
(pp)
FTC . The Company and its domestic subsidiaries are in
compliance with the applicable requirements of the Federal Trade
Commission (the “ FTC ”) rules governing
franchising and applicable provisions of federal, state, local and
other U.S. laws or regulations governing the business of a
franchise or that are applicable to their businesses as presently
conducted, except in each case as would not reasonably be expected
to, individually or in the aggregate, have a Material Adverse
Effect.
4.
Representations and Warranties of the Selling Stockholders .
Each of the Selling Stockholders severally and not jointly
represents and warrants to the Underwriter and the Company
that:
(a)
Required Consents; Authority . All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and the Custody
Agreement (the “ Custody Agreement ”)
hereinafter referred to, and for the sale and delivery of the
Shares to be sold by such Selling Stockholder hereunder, have been
obtained except for (i) the registration of the Shares under
the Securities Act, (ii) such as may be required by the rules
of The New York Stock Exchange or FINRA, and (iii) such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities
laws, in connection with the purchase and distribution of the
Shares to be sold by such Selling Stockholder hereunder to the
Underwriter; such Selling Stockholder has full right, power and
authority to enter into this Agreement and the Custody Agreement
and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder hereunder; and this Agreement and the
Custody Agreement have each been duly authorized, executed and
delivered by such Selling Stockholder.
(b)
FINRA . Except as disclosed by such Selling Stockholder in
writing to the Underwriter, to the knowledge of such Selling
Stockholder, neither such Selling Stockholder nor any of his, her
or its affiliates directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with, or has any other association with (within the meaning
of Article 1(q) of the By-laws of the NASD) any member firm of
FINRA.
(c)
No Conflicts . The execution, delivery and performance by
such Selling Stockholder of this Agreement and the Custody
Agreement, the sale of the Shares to be sold by such Selling
Stockholder and the performance by such Selling Stockholder of its
obligations herein and therein contemplated will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of such Selling Stockholder
pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound or to
which any of the property or assets of such Selling Stockholder is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of such
Selling Stockholder or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory agency having
jurisdiction over such Selling Stockholder, except in the case of
clauses (i) and (iii) above for any such conflict,
breach, violation or default that would not, individually or in the
aggregate, have a material adverse effect on such Selling
Stockholder’s ability to consummate the transactions
contemplated by this Agreement.
13
(d)
Title to Shares. Such Selling Stockholder has good and valid
title to the Shares to be sold at the Closing Date by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances,
equities or adverse claims; such Selling Stockholder will have,
immediately prior to the Closing Date, good and valid title to the
Shares to be sold at the Closing Date by such Selling Stockholder,
free and clear of all liens, encumbrances, equities or adverse
claims; and, upon delivery of the certificates representing such
Shares and payment therefor pursuant hereto, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities
or adverse claims, will pass to the Underwriter.
(e)
No Stabilization. Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(f)
Time of Sale Information . The Time of Sale Information at
the Time of
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