4,000,000 Shares of Common
Stock
J.P. Morgan
Securities Inc.
Morgan Stanley & Co. Incorporated
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
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
UIL Holdings
Corporation, a Connecticut 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 4,000,000 shares of
common stock (the “Common Stock”), no par value, of the
Company (the “Underwritten Shares”) and, at the option
of the Underwriters, up to an additional 600,000 shares of common
stock 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 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 thereunder
(collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-157854), including a
prospectus relating to 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), 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 May 18, 2009
and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex B
hereto.
“Applicable
Time” means 5:30 P.M., New York City time, on May 20,
2009.
2.
Purchase of the Shares by the Underwriters .
(a) On the
basis of the representations and agreements set forth herein, 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
$19.95.
In addition, on
the basis of the representations and agreements set forth herein,
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; provided, however that such option
may be exercised only to the extent the Underwriters sell more than
the number of Underwritten Shares in the offering. 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
2
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 three 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 effectiveness 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 (a “Participating
Affiliate”).
(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 May 27, 2009, or at such other time or place on
the same or such other date, not later than the third 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, except as otherwise expressly set forth in this
Agreement, 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
3
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 and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information 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 and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
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)
and, when taken together with the Preliminary Prospectus filed
prior to the first use 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 and 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 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
4
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, to the knowledge of the Company, 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 and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information 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. None of the documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed, contained any
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and 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 except as disclosed therein,
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; and the
other financial information relating to the Company and its
consolidated subsidiaries 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.
5
(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 (A) the issuance of shares of Common Stock
upon exercise of stock options and warrants and vesting under
performance shares and restricted stock awards, in each case as
described in such filings and (B) the grant of options and
awards under existing equity incentive plans described in, the
Registration Statement or the Pricing Disclosure Package), any
material change in the 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 (other than as disclosed in
the Registration Statement or the Pricing Disclosure Package), or
any material adverse change, or any development that would
reasonably be expected to involve 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 of clause (i), (ii) and (iii) above as otherwise
disclosed in the Registration Statement or the Pricing Disclosure
Package.
(h)
Organization and Good Standing. The Company and each of its
subsidiaries have been duly organized and are validly existing and
are authorized to transact business 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 other than
the subsidiaries listed in the exhibit incorporated by reference in
Exhibit 21.1 to the Company’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2009.
(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 (i) as described in
or expressly contemplated by the Registration Statement or the
Pricing Disclosure Package, or (ii) any shares or awards,
including the settlement of such awards in Common Stock, pursuant
to any stock incentive plan, deferred compensation plan or employee
stock purchase plan of the Company disclosed in the Registration
Statement, there are no outstanding rights (including, without
limitation, pre-emptive rights),
6
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 described in the
Registration Statement (the “Company Stock Plans”),
(i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code 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 all material respects 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 GAAP 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
immediately 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 full right, 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) No
Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or bylaws 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
7
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) except as described in the Registration Statement or the
Pricing Disclosure Package, 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,
reasonably be expected to have a Material Adverse
Effect.
(o) 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 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 bylaws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation by the Company and its subsidiaries or, to the knowledge
of the Company, any other person, of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, (x) 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, reasonably be expected to have a Material Adverse Effect
and (y) in the case of clause (iii) above, for any such
violation that may arise as a result of the legal or regulatory
status of any person (other than the Company) or because of other
facts specifically pertaining to such person.
(p) 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 of the Company or
any of its subsidiaries or, to the knowledge of the Company, any
other party, 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 (i) such as have been obtained or made,
(ii) for the registration of the Shares under the Securities
Act, (iii) under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, (iv) pursuant to the applicable rules relating
to the listing of the Shares on the New York Stock Exchange (the
“Exchange”), or (v) as may be applicable as a
result of the legal or regulatory status of any person (other than
the Company) or because of other facts specifically pertaining to
such person.
(q) Legal
Proceedings. Except as described in the Registration Statement
or the Pricing Disclosure Package, there are no legal, governmental
or regulatory actions, suits or proceedings or, to the knowledge of
the Company, investigations pending to which the Company or any of
its subsidiaries is or, to the knowledge of the Company, may
reasonably be expected to be a party or to which any property of
the Company or any of its subsidiaries is, or, to the knowledge of
the Company, may reasonably be expected to be the subject that are
reasonably likely to be determined adversely to the Company or any
of its subsidiaries and, 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
8
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 or
the Pricing Disclosure Package that are not so described in the
Registration Statement or the Pricing Disclosure Package 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 or the Pricing Disclosure Package that are
not so filed as exhibits to the Registration Statement or described
in the Registration Statement or the Pricing Disclosure
Package.
(r) Independent
Accountants . PricewaterhouseCoopers LLP, which 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 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 taken as a whole, 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.
(t) 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,
except where the failure to possess the same would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and, to the knowledge of the Company, 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.
(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,
shareholders, 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 or in the Pricing
Disclosure Package.
(v) 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 or the
Pricing Disclosure Package, will not be required to register as an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning
9
of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Investment Company Act”).
(w) Taxes.
The Company and its subsidiaries have filed, directly or indirectly
as part of a consolidated or unitary group, all federal, state,
local and foreign tax returns that have been required to be filed
through the date hereof and have paid all taxes indicated by such
returns and all assessments received by them to the extent that
such taxes have become due, except in each case as described in the
Registration Statement or the Pricing Disclosure Package, where the
failure to pay or file would not be expected to have a Material
Adverse Effect, and the Company does not know or have reason to
know of any actual or proposed tax assessments that would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(x) Licenses
and Permits. Except as described in the Registration Statement
or the Pricing Disclosure Package, 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, reasonably be expected to have a
Material Adverse Effect; and except as described in the
Registration Statement or the Pricing Disclosure Package, neither
the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit
or authorization that would not reasonably be expected to have a
Material Adverse Effect.
(y) 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 in each case as would not reasonably be expected to have a
Material Adverse Effect.
(z) Compliance
with and Liability under Environmental Laws. Except as
described in the Registration Statement or the Pricing Disclosure
Package, (i) the Company and its subsidiaries (A) are,
and to the knowledge of the Company at all prior times were, in
compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions,
judgments, decrees, orders and the common law relating to pollution
or the protection of the environment, natural resources or human
health or safety, including those relating to the generation,
storage, treatment, use, handling, transportation, Release (as
defined below) or threat of Release of Hazardous Materials (as
defined below) (collectively, “Environmental Laws”),
(B) 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, (C) have not received notice of
any actual or potential liability under or relating to, or actual
or potential violation of, any Environmental Laws, including for
the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event
or condition that would reasonably be expected to result in any
such notice, other than with respect to such notices as have been
fully resolved and for which no costs, obligations or damages
remain, (D) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action
pursuant to any Environmental Law at any location, and (E) are
not a party to any order, decree or agreement that imposes any
obligation or liability under
10
any
Environmental Law, 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 (i) and
(ii) above, for any such matter, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (iii) (A) there are no proceedings that are
pending, or to the Company’s knowledge, threatened or
contemplated, against the Company or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a
party, other than such proceedings that the Company reasonably
believes will not result in monetary sanctions, exclusive of any
interest and costs, of $100,000 or more, (B) the Company and
its subsidiaries are not aware of any facts or issues regarding
compliance with Environmental Laws that could reasonably be
expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company and its
subsidiaries, and (C) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any
Environmental Laws.
(aa) Hazardous
Materials . Except as described in the Registration Statement
or the Pricing Disclosure Package, there has been no storage,
generation, transportation, use, handling, treatment, Release or
threat of Release of Hazardous Materials by, relating to or caused
by the Company or any of its subsidiaries (or, to the knowledge of
the Company and its subsidiaries, any other entity (including any
predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned,
operated or leased by the Company or any of its subsidiaries, or
at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under
any Environmental Law; except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring
radioactive materials, brine, and drilling mud, regulated or which
can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or
migrating in, into or through the environment, or in, into from or
through any building or structure.
(bb) Compliance
with ERISA. Except as would not reasonably be expected to have
a Material Adverse Effect or as disclosed in the Registration
Statement or the Pricing Disclosure Package, (i) 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 sponsored by the Company or any
member of its “Controlled Group” as (defined in
Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) (each, a “Plan”) is in
compliance with all presently applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Code;
(ii) no Plan has engaged in a non-exempt and uncorrected
prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code; (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
applicable to such Plan for 2008 (the most recent year), has been
satisfied (without taking into account any waiver thereof or
extension of any amortization period) and is reasonably expected by
the Company 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
which is subject to Title IV of ERISA exceeds the present value of
all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan); (v) no Plan subject to
Title IV of ERISA has experienced or is reasonably expected to
experience a
11
“reportable event” (within the
meaning of Section 4043(c) of ERISA and the regulations thereunder)
for which the 30 day notice requirement has not been waived
that either has resulted, or could reasonably be expected to
result, in material liability to the Company or its subsidiaries
under Title IV of ERISA; (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 Pension Benefit
Guaranty Corporation, in the ordinary course and without default)
with respect to a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of
ERISA); and (vii) to the knowledge of the Company, there is no
pending audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, or the Pension Benefit Guaranty
Corporation with respect to any Plan. Except as would not
reasonably be expected to have a Material Adverse Effect or as
disclosed in the Registration Statement or the Pricing Disclosure
Package, 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) in the current
fiscal year compared to the amount of such obligations in the
Company and its subsidiaries’ most recently completed fiscal
year.
(cc) 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.
(dd) 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 or the Pricing
Disclosure Package, there are no material weaknesses in the
Company’s internal control over financial reporting. 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 control over financial
12
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 control
over financial reporting.
(ee)
Insurance. Except as would not reasonably be expected to
have a Material Adverse Effect or as disclosed in the Registration
Statement or the Pricing Disclosure Package, (i) the Company and
its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are adequate to protect
the Company and its subsidiaries and their respective businesses,
and (ii) neither the Company nor any of its subsidiaries
(A) has received notice from any insurer or agent of such
insurer that capital improvemen
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