Fidelity National Financial,
Inc.
15,800,000 Shares of Common Stock,
$0.0001 par value
J.P. Morgan
Securities Inc.
Goldman, Sachs & Co.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan
Securities Inc.
277 Park Avenue
New York, New York 10172
c/o Goldman,
Sachs & Co.
85 Broad Street
New York, New York 10004
Fidelity National
Financial, Inc., a Delaware corporation (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
Representatives (the “Representatives”), an aggregate
of 15,800,000 shares of common stock, par value $0.0001 per share,
of the Company (the “Underwritten Shares”) and, at the
option of the Underwriters, up to an additional 2,370,000 shares of
common stock, par value $0.0001 per share, of the Company (the
“Option Shares”). The Underwritten Shares and the
Option Shares are herein referred to as the “Shares”.
The shares of common stock, par value $0.0001 per share, of the
Company to be outstanding after giving effect to the sale of the
Shares are referred to herein as the
“Stock”.
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1.
Registration Statement . The Company 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
promulgated thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-147391),
including a prospectus relating to the registration of certain
securities described therein, including the Shares. Such
registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as
the “Registration Statement”; and as used herein, the
term “Preliminary Prospectus” means each prospectus
included in such registration statement (and any amendments thereto
that relates to the Shares) before effectiveness, any prospectus
filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430
Information, and the term “Prospectus” means the
prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities
Act (the
“Rule 462 Registration Statement”, then any
reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the
Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information
set forth on Annex B, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated April 14, 2009
and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex B
hereto.
“Applicable
Time” means 5:00 P.M., New York City time, on April 14,
2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Company the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at
a price per share (the “Purchase Price”) of
$18.24.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the
Company the Option Shares at the Purchase Price less an amount per
share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on
the Option Shares.
If any Option
Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Underwritten Shares set forth
opposite the name of such Underwriter in Schedule 1 hereto (or
such number increased as set forth in Section 10 hereof) bears
to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
The Underwriters
may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day
following the date of the Prospectus, by written notice from the
Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date or later than the tenth full business day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the
provisions of
Section 10 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Shares as soon after the execution of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares, at the
offices of Davis Polk & Wardwell at 10:00 A.M., New York
City time, on April 20, 2009, or at such other time or place
on the same or such other date, not later than the fifth business
day thereafter, as the Representatives and the Company may agree
upon in writing or, in the case of the Option Shares, on the date
and at the time and place specified by the Representatives in the
written notice of the Underwriters’ election to purchase such
Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing
Date”, and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date”.
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several
Underwriters of the Shares to be purchased on such date or the
Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”)
unless the Representatives shall otherwise instruct. The
certificates for the Shares will be made available for inspection
and packaging by the Representatives at the office of DTC or its
designated custodian not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company 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 or any other person.
Additionally, neither the Representatives nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus included in the Pricing Disclosure Package,
at the time of filing thereof, complied in all material respects
with the Securities Act, and no Preliminary Prospectus, at the time
of filing thereof, contained any untrue statement of a material
fact or omitted 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 or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
any Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(b) Pricing
Disclosure Package . The Pricing Disclosure Package as of the
Applicable Time did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, 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 or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(c) Issuer Free
Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not prepared, used, authorized,
approved or referred to and will not prepare, 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 B hereto, each electronic road show and any other
written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required
thereby), does not conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the
Prospectus as of the Applicable Time, and when taken together with
the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not, and as
of the Closing Date and as of the Additional Closing Date, as the
case may be, 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 or warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus or Preliminary Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in such Issuer Free Writing
Prospectus or Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(d)
Registration Statement and Prospectus. The Registration
Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities
Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act has been received by the Company. 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 of the Shares has been initiated or
threatened by the Commission; as of the applicable effective date
of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with
the Securities Act, and did not and 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; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may
be, the Prospectus 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 or warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(e)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act, and none of such documents contained any
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Pricing Disclosure
Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Financial
Statements. The financial statements (including the related
notes thereto) of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus comply
in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present
fairly in all material respects the financial position of the
Company and its consolidated 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 in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly in all material respects the information
required to be stated therein; the other financial information
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus has
been derived from the accounting records of the Company and its
consolidated subsidiaries and presents fairly in all material
respects the information shown thereby; and the pro forma
financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus have been prepared in
accordance with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and the assumptions underlying
such pro forma financial information are reasonable and are
set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(g) No Material
Adverse Change. Since the date of the most recent financial
statements of the Company included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any change in the capital
stock (other than the issuance of shares of Common Stock upon
exercise of stock options and warrants described as outstanding in,
and the grant of options and awards under existing equity incentive
plans described in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus), short-term debt 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 or affecting the business,
properties, management, financial position, stockholders’
equity, results of operations or prospects 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 (whether or not in the ordinary course of business) 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 or interference with its business that is
material to the Company and its subsidiaries taken as a whole and
that is either 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, except in each
case as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h)
Organization and Good Standing. The Company and each of its
subsidiaries listed on Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the year ended December 31,
2008 (the “Significant Subsidiaries”) have been duly
organized and are validly existing and in good standing 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 in good standing or have such power or authority
would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial
position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under this
Agreement (a “Material Adverse Effect”). The Company
does not own or control, directly or indirectly, any corporation,
association or other entity that would be a “Significant
Subsidiary” (as defined in Rule 1-02(w) of Regulation
S-X) other than the Significant Subsidiaries.
(i)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital
stock of the Company 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 Pricing Disclosure Package and the
Prospectus, 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 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 Registration Statement,
the Pricing Disclosure Package and the Prospectus; and all
the
outstanding
shares of capital stock or other equity interests of each
subsidiary owned, directly or indirectly, by the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and 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.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation
plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code (as defined below) so qualifies, (ii) each grant of a
Stock Option was duly authorized no later than the date on which
the grant of such Stock Option was by its terms to be effective
(the “Grant Date”) by all necessary corporate action,
including, as applicable, approval by the board of directors of the
Company (or a duly constituted and authorized committee thereof)
and any required stockholder approval by the necessary number of
votes or written consents, and the award agreement governing such
grant (if any) was duly executed and delivered by each party
thereto, (iii) each such grant was made in accordance with the
terms of the Company Stock Plans, the Exchange Act and all other
applicable laws and regulatory rules or requirements, including the
rules of the New York Stock Exchange and any other exchange on
which Company securities are traded, and (iv) each such grant
was properly accounted for in accordance with generally accepted
accounting principles in the financial statements (including the
related notes) of the Company and disclosed in the Company’s
filings with the Commission in accordance with the Exchange Act and
all other applicable laws. The Company has not knowingly granted,
and there is no and has been no policy or practice of the Company
of granting, Stock Options prior to, or otherwise coordinating the
grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its
subsidiaries or their results of operations or
prospects.
(k) Due
Authorization. The Company has the corporate, power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder; and all action required to be taken for the
due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions
contemplated hereby has been duly and validly taken.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(m) The
Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing
Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar
rights.
(n) Description
of the Underwriting Agreement. The Underwriting Agreement
conforms in all material respects to the description thereof
contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(o) No
Violation or Default. Neither the Company nor any of its
Significant 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 Significant Subsidiaries is a party or by which the Company
or any of its Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Significant
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 would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares 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 Significant Subsidiaries pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party
or by which the Company or any of its Significant Subsidiaries is
bound or to which any of the property or assets of the Company or
any of its Significant 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, violation or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(q) No Consents
Required. No consent, approval, authorization, order, license,
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, the
issuance and sale of the Shares and the consummation of the
transactions contemplated by this Agreement, except for the
registration of the Shares under the Securities Act and 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
by the Underwriters.
(r) Legal
Proceedings. Except as described in the Registration Statement,
the Pricing Disclosure Package and the 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; no such investigations, actions, suits or
proceedings are threatened or, to the knowledge of the Company,
contemplated by any governmental or regulatory authority or
threatened by others; 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
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus 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
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(s) Independent
Accountants . KPMG LLP, who have 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.
(t) Title to
Real and Personal Property . The Company and its subsidiaries
have good and marketable title in fee simple (in the case of real
property) to, or have valid and marketable rights to lease or
otherwise use, all items of real and personal property and assets
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.
(u) Title to
Intellectual Property . The Company and its subsidiaries own or
possess adequate rights to use all material 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 as currently conducted and as proposed to be conducted,
and the conduct of their respective businesses will not conflict in
any material respect with any such rights of others. The Company
and its subsidiaries have not received any notice of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and
know-how, which could reasonably be expected to result in a
Material Adverse Effect.
(v) 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 Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing
Disclosure Package.
(w) Investment
Company Act . The Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, will not be required
to register as an “investment company” or an entity
“controlled” by 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, the “Investment Company
Act”).
(x) 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; and except as otherwise
disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective
properties or assets that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(y) 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
Registration Statement, the Pricing Disclosure Package and the
Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in the Registration
Statement, the Pricing Disclosure Package and the 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.
(z) No Labor
Disputes. No labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is contemplated or threatened, and 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 have a Material Adverse Effect.
(aa) Compliance
with ERISA. (i) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for which
the Company or any member of its “Controlled Group”
(defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended (the “Code”))
would have any liability (each, a “Plan”) 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 Code, except for noncompliance that
could not reasonably be expected to result in material liability to
the Company or its subsidiaries; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to
result in a material liability to the Company or its subsidiaries;
(iii) for each Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, the
minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as applicable, has been satisfied
(without taking into account any waiver thereof or extension of any
amortization period) and is reasonably expected to be satisfied in
the future (without taking into account any waiver thereof or
extension of any amortization period); (iv) the fair market
value of the assets of each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan); (v) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur that either has
resulted, or could reasonably be expected to result, in material
liability to the Company or its subsidiaries; (vi) neither the
Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC, in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(a)(3) of ERISA); and (vii) there is no
pending audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation
or any other governmental agency or any foreign regulatory agency
with respect to any Plan that could reasonably be expected to
result in material liability to the Company or its subsidiaries.
None of the following events has occurred or is reasonably likely
to occur: (x) a material increase in the aggregate amount of
contributions required to be made to all Plans by the Company or
its subsidiaries in the current fiscal year of the Company and its
subsidiaries compared to the amount of such contributions made in
the Company and its subsidiaries’ most recently completed
fiscal year; or (y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such
obligations in the Company and its subsidiaries’ most
recently completed fiscal year.
(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 complies with the requirements of the Exchange
Act and that has been 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 as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(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 comply with the
requirements of the Exchange Act and 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. Except
as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no material weaknesses in the
Company’s internal controls. The Company’s auditors and
the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over
financial reporting which have adversely affected or are reasonably
likely to adversely affect the Company’s ability to record,
process, summarize and report financial information; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls over financial
reporting.
(dd)
Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, including business interruption insurance, which
insurance
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