FIRST NIAGARA FINANCIAL GROUP,
INC.
(a Delaware corporation)
27,000,000 Shares of Common
Stock
($0.01 Par Value Per Share)
Keefe, Bruyette
& Woods, Inc.
787 Seventh Avenue, 4th Floor
New York, NY 10019
Goldman, Sachs
& Co.
85 Broad Street,
New York, New York 10004
As
representatives of the several Underwriters
First Niagara Financial Group, Inc., a Delaware
corporation (the “Company”), confirms its agreement
with Keefe, Bruyette & Woods, Inc. and Goldman, Sachs &
Co., in their capacity as representatives (the
“Representatives”) of the other Underwriters named in
Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof) with respect to (i) the sale by the Company, and the
purchase by the Underwriters, acting severally and not jointly, of
the number of shares of Common Stock, $0.01 par value per share, of
the Company (“Common Stock”) set forth in
Schedule A hereto and (ii) the grant by the
Company to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any
part of 4,050,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 27,000,000 shares of Common
Stock (the “Initial Securities”) to be purchased by the
Underwriters and all or any part of the 4,050,000 shares of Common
Stock subject to the option described in Section 2(b) hereof (the
“Option Securities”) are hereinafter called,
collectively, the “Securities.”
The Company understands that the Underwriters
propose to make a public offering of the Securities as soon as the
Underwriters deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and
Exchange Commission (the “Commission”) a registration
statement on Form S-3 (No. 333-153640), including the
related prospectus covering the registration of the Securities
under the Securities Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430B
(“Rule 430B”) of the rules and regulations of the
Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. The
information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it
became effective pursuant to paragraph (a) of Rule 430B
is referred to as “Rule 430B Information.” The
registration statement referred to above, including exhibits and
financial statements and any prospectus relating to the Securities
that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to
Rule 430B, as amended on each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or
becomes effective (the “Effective Date”) and, in the
event of any post-effective amendment thereto shall be referred to
as the “Registration Statement.” Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the “Rule 462(b) Registration
Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. The prospectus referred to above and
included in the Registration Statement at the Effective Time shall
be referred to as the “Prospectus.” The prospectus
which includes the Rule 430B Information relating to the
Securities that was first filed pursuant to Rule 424(b) after the
Applicable Time (as defined below), together with the Prospectus,
shall be referred to as the “Final Prospectus.” For
purposes of this Agreement, all references to the Registration
Statement, the Final Prospectus or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system (“EDGAR”).
All references in this Agreement to financial
statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, the Prospectus,
or the Final Prospectus (or other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference
in the Registration Statement, the Prospectus, or the Final
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement, the Prospectus, or the Final Prospectus shall be deemed
to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the “1934 Act”) which is
incorporated by reference in the Registration Statement, the
Prospectus, or the Final Prospectus, as the case may be. All
references to the Registration Statement, the Prospectus, or the
Final Prospectus shall be deemed to include the information
incorporated by reference in each such document.
SECTION 1.
Representations and Warranties and Agreements .
(a) Representations and Warranties by
the Company. The Company represents and warrants to the
Underwriters as of the date hereof, as of the Closing Time referred
to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with the
Underwriters, as follows:
(i) Compliance with Registration
Requirements . (i) At the earliest time after the filing
of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Securities and (ii) as of the
Applicable Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
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The Company meets the requirements for use of
Form S-3 for registration under the 1933 Act of the offering and
sale of the Securities. Each of the Registration Statement and any
Rule 462(b) Registration Statement, if any, has become effective
under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement and any post-effective amendment
thereto or any Rule 462(b) Registration Statement and any
post-effective amendment thereto has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission nor any state or other jurisdiction or regulatory
body, and any request on the part of the Commission, any state or
other jurisdiction or other regulatory body for additional
information has been complied with.
The Company may have filed with the Commission,
as part of an amendment to the Registration Statement or pursuant
to Rule 424(b), one or more prospectuses relating to the
Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus relating
to the Securities in accordance with Rule 424(b). As filed,
such final prospectus when taken together with the documents
incorporated by reference therein shall contain all information
required by the 1933 Act and the rules thereunder, and, except to
the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such specific
additional information and other changes (beyond that contained in
the Prospectus) as the Company has advised you, prior to the
Applicable Time, will be included or made therein. The Registration
Statement, at the Applicable Time, meets the requirements set forth
in Rule 415(a)(1)(x).
On each Effective Date, the Registration
Statement did, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and as of the Closing Time (as defined
herein) and on any date on which Option Securities are purchased,
if such date is not as of the date of the Closing Time at the Date
of Delivery, the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable
requirements of the 1933 Act and the 1934 Act and the respective
rules thereunder; on each Effective Date and at the Applicable
Time, the Registration Statement did not and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and as of the Closing Time and any
Date of Delivery, the Final Prospectus (together with any
supplement thereto) will not include 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. Each Prospectus and the
Final Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by
Regulation S-T.
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As of the Applicable Time, the General
Disclosure Package did not contain any untrue statement of a
material fact and did not omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
As used in this
subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 p.m.
(Eastern time) on April 14, 2009.
“General Disclosure Package” means
(i) the Prospectus, if any, used most recently prior to the
Applicable Time, (ii) the Issuer-Represented Free Writing
Prospectuses, if any, identified in Schedule B hereto,
(iii) the information listed on Schedule C hereto, and
(iv) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the
General Disclosure Package.
“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the Commission by
the Company or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
Each Issuer-Represented Free Writing Prospectus,
when considered together with the General Disclosure Package as of
the Applicable Time, did not contain any untrue statement of
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading and, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the
Final Prospectus, including any document incorporated by reference
therein and any other prospectus deemed to be a part thereof that,
in each case, has not been superseded or modified.
The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement, any Prospectus, the Final Prospectus or any
Issuer- Represented Free Writing Prospectus made in reliance upon
and in conformity with written information furnished to the Company
by the Underwriters expressly for use therein.
(ii) Incorporated Documents . The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Final Prospectus, at the time
they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder
(the “1934 Act Regulations”), and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
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(iii) Independent Accountants .
KPMG LLP, the independent registered public accounting firm that
certified the financial statements and supporting schedules of the
Company included in or incorporated by reference into the
Registration Statement and the Final Prospectus is an independent
registered public accounting firm as required by the 1933 Act and
the 1933 Act Regulations. With respect to the Company, to the
Company’s knowledge, KPMG LLP has not been in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (“Sarbanes-Oxley Act”) and the related rules and
regulations of the Commission.
(iv) Financial Statements . The
financial statements, audited and unaudited (including all notes
and schedules thereto) included in or incorporated by reference
into the Registration Statement, the General Disclosure Package and
the Final Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and for the
periods specified. Such financial statements (including all notes
and schedules thereto) have been prepared in conformity with
generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in or incorporated by
reference into the Registration Statement, the General Disclosure
Package and the Final Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The selected
financial data and the summary financial information included under
the headings “Summary Selected Audited Consolidated Financial
Information,” “Recent Developments” and
“The Acquisition” included in the Registration
Statement, the General Disclosure Package and the Final Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in or incorporated by reference into the Registration
Statement and the books and records of the Company. No other
financial statements or schedules are required to be included in
the Registration Statement. To the extent applicable, all
disclosures contained in the Registration Statement or the Final
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the 1934 Act, the 1934
Act Regulations and Item 10 of Regulation S-K under the
1933 Act, as applicable.
(v) No Material Adverse Change in
Business . Since the respective dates as of which information
is given in the Registration Statement, the General Disclosure
Package and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business and there has been no effect with
respect to the Company and its subsidiaries considered as one
enterprise, which would prevent, or be reasonably likely to
prevent, the Company from consummating the transaction contemplated
by this Agreement (a “Material Adverse Effect”),
(B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for quarterly dividends on the Common Stock in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
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(vi) Good Standing of the Company .
The Company is a registered savings and loan holding company under
the Home Owners’ Loan Act, as amended (the
“HOLA”), with respect to First Niagara Bank (the
“First Niagara Bank”) and First Niagara Commercial Bank
(the “Commercial Bank”, together with First Niagara
Bank the “Banks”) and the Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the power and
authority (corporate and otherwise) to own, lease and operate its
properties, to conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Final Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not reasonably be expected to result in a Material
Adverse Effect.
(vii) Good Standing of Subsidiaries
. Each “significant subsidiary” of the Company (as such
term is defined in Rule 1-02 of Regulation S-X) (each a
“Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly
existing as a corporation, limited liability company, limited
partnership, trust company, statutory business trust or bank in
good standing under the laws of its respective jurisdiction of
incorporation or organization with the power and authority
(corporate and otherwise) to own, lease and operate its properties
and to conduct its business as described in the General Disclosure
Package and the Final Prospectus and is duly qualified as a foreign
organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect. Except as
otherwise disclosed in the General Disclosure Package and Final
Prospectus, all of the issued and outstanding capital stock or
other equity interests of each such Subsidiary that is a
corporation has been duly authorized and validly issued, is fully
paid and non-assessable. The issued and outstanding shares of
capital stock or other equity interests of each such Subsidiary
that are owned directly or indirectly by the Company are owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock or other
equity interest of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder or equity holder
of such Subsidiary. The only Subsidiaries of the Company are the
Subsidiaries listed on Schedule D hereto.
(viii) Capitalization . At
March 31, 2009, the Company had 250,000,000 authorized shares
of Common Stock, 118,687,368 shares of which were issued and
outstanding, and 50,000,000 authorized shares of preferred stock,
par value $0.01 per share, 184,001 shares of which were issued or
outstanding. All of the shares of the Company’s issued and
outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable, and none of the
outstanding shares of capital stock were issued in violation of the
preemptive or other similar rights of any securityholder of the
Company. All of the issued and outstanding capital stock of each
Subsidiary of the Company has been duly authorized and validly
issued and is fully paid and non-assessable, and is owned, directly
or through other subsidiaries of the Company, by the Company free
and clear of any pledge, lien, encumbrance, claim or equity. Except
as described in the General Disclosure Package and the Final
Prospectus (A) there are no outstanding rights (contractual or
otherwise), warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares
of capital stock of or other equity interest in the Company except
pursuant to the Company’s stock option plans and awards
currently in effect on the date hereof; and (B) there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the 1933 Act or otherwise
register any securities of the Company owned or to be owned by such
person, other than the Company’s dividend reinvestment
plan.
6
(ix) Authorization of Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company and, when duly executed by the Underwriters, will
constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by
general equitable principles and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. The issue and sale of the Securities by the
Company and the performance by the Company of all of its
obligations under this Agreement and the consummation of the
transactions contemplated herein and in the Final Prospectus
(including the use of the proceeds from the sale of the Securities
as described in the Final Prospectus under the caption “Use
of Proceeds”) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, (i) 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) the provisions of the certificate of incorporation or
bylaws of the Company or (iii) any statute or any order, rule
or regulation of any federal, state or local court or governmental
agency (each a “Governmental Entity”) or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties except, with respect to clauses (i) and
(iii), for those conflicts, breaches, violations, defaults or
Repayment Events that would not result in a Material Adverse
Effect. No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities, the
performance by the Company of its obligations hereunder or the
consummation by the Company of the transactions contemplated by
this Agreement, except (i) the registration under the 1933 Act
of the Securities, (ii) as may be required under the rules and
regulations of the Nasdaq Global Select Market and the Financial
Industry Regulatory Authority (“FINRA”),
(iii) such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or (iv) where
the failure to obtain such consent, authorization, order or
qualification would not have a Material Adverse Effect. As used
herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
7
(x) Authorization and Description of
Securities . The Securities to be purchased by the Underwriters
from the Company have been duly authorized for issuance and sale by
the Company to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock
conforms in all material respects to all statements relating
thereto contained in the Final Prospectus and such description
conforms in all material respects to the rights set forth in the
instruments defining the same; no holder of the Securities will be
subject to personal liability for the debts of the Company by
reason of being such a holder; and the issuance of the Securities
is not subject to the preemptive or other similar rights of any
securityholder of the Company. Except as described in the Final
Prospectus and the General Disclosure Package, (A) there are
no outstanding rights (contractual or statutory), warrants or
options to acquire from the Company, or instruments convertible
into or exchangeable for, or agreements or understandings with
respect to the sale or issuance by the Company of, any shares of
capital stock of or other equity interest in the Company, and
(B) there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a Registration Statement under the
1933 Act or otherwise register any securities of the Company owned
or to be owned by such person.
(xi) The statements set forth in the
General Disclosure Package and the Final Prospectus under the
caption “Description of Capital Stock of First Niagara
Financial Group, Inc.,” insofar as such statements contain
descriptions of laws, rules or regulations, and insofar as they
describe the terms of agreements or the Company’s certificate
of incorporation or bylaws, are correct in all material
respects.
(xii) Absence of Defaults and
Conflicts . Except as described in the General Disclosure
Package and the Final Prospectus, neither the Company nor any of
its Subsidiaries is in violation of its certificate of
incorporation or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any Subsidiary is subject
(collectively, “Agreements and Instruments”) except for
such defaults that would not result in a Material Adverse
Effect.
(xiii) Absence of Labor Dispute .
No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent,
which, in any case, may reasonably be expected to result in a
Material Adverse Effect.
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(xiv) Absence of Proceedings .
There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect; the
aggregate of all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xv) Compliance with Statutes and
Regulations . Except as disclosed in the Final Prospectus and
the General Disclosure Package, the Company and its subsidiaries
conduct their respective businesses in compliance in all material
respects with all federal, state, and local statutes, laws, rules,
regulations, decisions, directives and orders applicable to them,
and neither the Company nor any of its subsidiaries has received
any written or, to the Company’s knowledge, oral
communication from any Governmental Entity asserting that the
Company or any of its subsidiaries is not in compliance with any
statute, law, rule, regulation, decision, directive or
order.
(xvi) Anti-Money Laundering .
Except as disclosed in the Final Prospectus and the General
Disclosure Package, the operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, money laundering statutes
applicable to the Company and its subsidiaries, 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”).
(xvii) Accuracy of Exhibits . There
are no contracts or documents which are required to be described in
the Registration Statement, the General Disclosure Package, the
Final Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so described
and filed as required.
(xviii) Possession of Intellectual
Property . Except as otherwise disclosed in the General
Disclosure Package and the Final Prospectus, the Company and its
subsidiaries own or possess rights to use, or can acquire on
reasonable terms ownership of or rights to use, adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures and
excluding generally commercially available “off the
shelf” software programs licensed pursuant to shrink wrap or
“click and accept” licenses), trademarks, service
marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the
business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse
Effect.
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(xix) Possession of Licenses and
Permits . The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state or local regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company
and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has failed to file with
applicable regulatory authorities any statement, report,
information or form required by any applicable law, regulation or
order, except where the failure to so file would not, individually
or in the aggregate, have a Material Adverse Effect, all such
filings were in material compliance with applicable laws when filed
and, to the Company’s knowledge, no material deficiencies
have been asserted by any regulatory commission, agency or
authority with respect to any such filings or
submissions.
(xx) No Regulatory Proceedings .
Except as disclosed in the Final Prospectus and the General
Disclosure Package, neither the Company nor any of its subsidiaries
is a party to or subject to any order, decree, agreement,
memorandum or understanding or similar agreement with, or a
commitment letter, supervisory letter or similar submission to, any
Governmental Entity charged with the supervision or regulation of
depository institutions or engaged in the insurance of deposits
(including the FDIC) or the supervision or regulation of it or any
of its subsidiaries and neither the Company nor any of its
subsidiaries has been advised by any such Governmental Entity that
such Governmental Entity is contemplating issuing or requesting (or
is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum or understanding,
commitment letter, supervisory letter or similar
submission.
(xxi) Title to Property . The
Company and its subsidiaries have good and marketable title to all
real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as
(a) are described in the General Disclosure Package and the
Final Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the General Disclosure Package and the Final Prospectus, are in
full force and effect, and neither the Company nor any Subsidiary
has any written, or to the Company’s knowledge, oral notice
of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such Subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
10
(xxii) Investment Company Act . The
Company is not, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds
therefrom as described in the General Disclosure Package and the
Final Prospectus will not be, an “investment company”
or an entity “controlled” by an “investment
company” as such terms are defined in the Investment Company
Act of 1940, as amended (the “1940 Act”).
(xxiii) Environmental Laws . Except
as described in the General Disclosure Package and the Final
Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation in any material respect
of any federal, state or local statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all material permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, and (C) there are no material pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its
subsidiaries.
(xxiv) Taxes . The Company and each
of the subsidiaries has (a) timely filed all material foreign,
United States federal, state and local tax returns, information
returns, and similar reports that are required to be filed (taking
into account valid extensions), and all tax returns are true,
correct and complete, (b) paid in full all taxes required to
be paid by it and any other fine or penalty levied against it,
except for any such tax assessment, fine or penalty that is
currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect, and
(c) established on the most recent balance sheet reserves that
are adequate for the payment of all taxes not yet due and
payable.
(xxv) Insurance . The Company and
its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as the Company reasonably believes
are adequate for the conduct of the business of the Company and its
subsidiaries and the value of their properties and as are customary
in the business in which the Company and its subsidiaries are
engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; and the
Company has no reason to believe that they will not be able to
renew their existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
11
(xxvi) Statistical and Market Data
. The statistical and market related data contained in the Final
Prospectus and Registration Statement are based on or derived from
sources which the Company believes are reliable and
accurate.
(xxvii) Relationship . No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of its subsidiaries, on the other, that is required
by the Securities Act or by the rules and regulations of the
Commission thereunder to be described in the Registration Statement
and/or the Final Prospectus and that is not so
described.
(xxviii) Internal Control Over
Financial Reporting . The Company and each of its subsidiaries
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 financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year,
there has been (x) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) a
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