TEXAS CAPITAL BANCSHARES,
INC.
4,000,000 Shares of Common
Stock
($0.01 Par Value Per
Share)
FOX-PITT KELTON
COCHRAN CARONIA WALLER (USA) LLC
One South Wacker Drive
Chicago, Illinois 60606
Texas Capital
Bancshares, Inc., a Delaware corporation (the “
Company ”), hereby confirms its agreement with
Fox-Pitt Kelton Cochran Caronia Waller (USA) LLC (the “
Underwriter ”), (i) with respect to the sale by
the Company and the purchase by the Underwriter of 4,000,000 number
of shares of common stock, $0.01 par value per share (“
Common Stock ”) of the Company as set forth in
Schedule I hereto and (ii) the grant by the Company to
the Underwriter of the option described in Section 2(b) hereof to
purchase all or any part of 600,000 additional shares of Common
Stock to cover overallotments, if any. The aforesaid 4,000,000
shares of Common Stock (the “ Initial Securities
”) to be purchased by the Underwriter and all or any part of
the 600,000 shares of Common Stock subject to the option described
in Section 2(b) hereof (the “ Option Securities
”) are hereinafter called, collectively, the “
Securities .”
The Company
understands that the Underwriter proposes to make a public offering
of the Securities as soon as the Underwriter deems advisable after
this Agreement has been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement on
Form S-3 (No. 333-158586), including the related
preliminary prospectus or prospectuses, covering the registration
of the Securities under the Securities Act of 1933, as amended (the
“ Securities Act ”). Promptly after execution
and delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430A
(“ Rule 430A ”) of the rules and regulations of
the Commission under the Securities Act (the “ Securities
Act Regulations ”) and paragraph (b) of
Rule 424 (“ Rule 424(b) ”) of the
Securities Act Regulations. The information included in such
prospectus that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such
registration statement at the time it became effective pursuant to
paragraph (b) of Rule 430A is referred to as “
Rule 430A Information .” Each prospectus used
before such registration statement became effective, and any
prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a “
preliminary prospectus .” Such registration statement,
including the amendments thereto, the exhibits and any schedules
thereto, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act at the time it
became effective, and including the Rule 430A Information, is
herein called the “ Registration Statement .”
Any registration statement filed pursuant to Rule 462(b) of the
Securities Act Regulations is herein referred to as the “
Rule 462(b) Registration Statement ,” and after
such filing the term “ Registration Statement ”
shall include the Rule 462(b)
Registration
Statement. The final prospectus in the form first furnished to the
Underwriter for use in connection with the offering of the
Securities, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities
Act is herein called the “ Prospectus .” For
purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system (“
EDGAR ”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all
such financial statements (including pro forma financial
information) and schedules and other information which is
incorporated by reference in or otherwise deemed by the Securities
Act Regulations to be a part of or included in the Registration
Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of
1934 (the “ Exchange Act ”) which is
incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may
be.
SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties of the Company . The Company
represents and warrants to the Underwriter as of the date hereof,
the Time of Sale referred to in Section 1(a)(i) hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each
Date of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with the Underwriter, as follows:
(i) Compliance
with Registration Requirements . Each of the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the
Securities Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement
or any post-effective amendment thereto has been issued under the
Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied
with.
At the respective
times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the Securities Act and
the Securities Act Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
Neither the
Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any such amendment or supplement was issued and
at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will 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.
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As of the Time of
Sale (as defined below), neither (x) the Issuer General Use
Free Writing Prospectus(es) (as defined below) issued at or prior
to the Time of Sale, the Statutory Prospectus (as defined below) as
of the Time of Sale, all considered together (collectively, the
“ General Disclosure Package ”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
As of the time of
the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet (as defined in
Section 3(a)(ii), will not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
As used in this
subsection and elsewhere in this Agreement:
” Issuer
Free Writing Prospectus ” means any “issuer free
writing prospectus,” as defined in Rule 433 of the
Securities Act Regulations (“ Rule 433 ”),
relating to the Securities that (i) is required to be filed
with the Commission by the Company, (ii) is a “road show
that is a written communication” within the meaning of
Rule 433(d)(8)(i) whether or not required to be filed with the
Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
required to be retained in the Company’s records pursuant to
Rule 433(g).
” Issuer
General Use Free Writing Prospectus ” means any Issuer
Free Writing Prospectus that is intended for general distribution
to prospective investors, as evidenced by its being specified in
Schedule V hereto.
” Issuer
Limited Use Free Writing Prospectus ” means any Issuer
Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
”
Statutory Prospectus ” as of any time means the
prospectus relating to the Securities that is included in the
Registration Statement immediately prior to that time, including
any document incorporated by reference therein. For purposes of
this definition, information contained in a form of prospectus that
is deemed retroactively to be part of the Registration Statement
pursuant to Rule 430A shall be considered to be included in
the Statutory Prospectus as of the actual time that such form of
prospectus is filed with the Commission pursuant to Rule 424(b)
under the Securities Act.
” Time of
Sale ” means 9:00 am (Eastern time) on May 5, 2009
or such other time as agreed by the Company and the
Underwriter.
Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Securities or until any earlier date that the issuer notified or
notifies the Underwriter as described in Section 3(b), did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, and any preliminary or
other prospectus deemed to be a part thereof that has not been
superseded or modified.
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The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by the Underwriter specifically for inclusion
therein.
Each preliminary
prospectus (including the prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto) complied when so filed in all material respects
with the Securities Act and Securities Act Regulations and each
preliminary prospectus and the Prospectus delivered to the
Underwriter for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
At the time of
filing the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto and at the date
hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405 of the Securities Act
Regulations.
(ii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Act and
the Securities Act Regulations or the Securities Exchange Act of
1934 (the “ Exchange Act ”) and the rules and
regulations of the Commission thereunder (the “ Exchange
Act Regulations ”), as applicable, and, when read
together with the other information in the Prospectus, (a) at
the time the Registration Statement became effective, (b) at
the time the Prospectus was issued and (c) at the Closing
Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iii)
Authorization and Description of Securities . The Securities
to be purchased by the Underwriter from the Company have been duly
authorized for issuance and sale to the Underwriter pursuant to
this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and
non-assessable; the Securities conform to all statements relating
thereto contained in the Prospectus and such description conforms
to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities
is not subject to the preemptive or other similar rights of any
securityholder of the Company.
(iv) Accuracy
of Exhibits . There are no contracts or documents which are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been
so described and filed as required.
(v) Pending
Proceedings and Examinations . The Registration Statement is
not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Securities Act, and the Company is not
the subject of a pending proceeding under Section 8A of the
Securities Act in connection with the offering of the
Securities.
(vi) Accuracy
of Certain Disclosure . The statements set forth in each of the
Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Certain U.S. Federal Income Tax
Consequences to Non-U.S. Holders of Common Stock” and under
the heading “Regulation and Supervision” in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2008 (which is incorporated by reference in the
Prospectus),
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insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material
respects.
(vii) 5%
Shareholders . To the knowledge of the Company, there are no
affiliations or associations between any member of the Financial
Industry Regulatory Authority, Inc. (“ FINRA ”)
and any of the Company’s officers, directors or beneficial
owners of 5% or more of the Company’s outstanding Common
Stock, except as set forth in the Registration Statement, General
Disclosure Package or Prospectus or as disclosed in writing to the
Underwriter.
(viii)
Listing . The Securities have been approved for quotation on
the Nasdaq Global Select Market (“Nasdaq”) upon
official notice of issuance.
(ix)
Registration Rights . Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no persons with registration rights or other
similar rights to have any securities registered by the Company
under the Securities Act, including by reason of filing of the
Registration Statement.
(x) Financial
Statements . The financial statements and the related notes
thereto of the Company and its consolidated Subsidiaries (as
defined below) included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus present fairly 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 U.S. generally accepted accounting principles
applied on a consistent basis throughout the periods covered
thereby; the other financial information included or incorporated
by reference in the Registration Statement, the General Disclosure
Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated Subsidiaries and
presents fairly the information shown thereby.
(xi)
Statistical Information . The statistical information
required by Commission Industry Guide 3 included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information set forth therein, is in compliance in all
material respects with the Securities Act and the rules and
regulations of the Commission thereunder and such Guide 3, and is
consistent in all material respects with the Company’s
financial statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus, except as noted therein. Nothing has come to the
attention of the Company that has caused the Company to believe
that the other statistical and market related data included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(xii)
Organization and Good Standing . The Company and each of its
subsidiaries (collectively, the “ Subsidiaries
”) have been duly organized and are validly existing and in
good standing under the laws of their respective jurisdictions of
organization (or, in the case of Texas Capital Bank, National
Association (the “ Bank ”), is duly chartered
and validly existing as a national banking association), 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,
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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 hereunder (a “ Material Adverse Effect
”). The Subsidiary listed in Exhibit B to this Agreement
is the only significant Subsidiary of the Company.
(xiii) 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 General Disclosure
Package and the Prospectus, (a) there has not been any change
in the capital stock, long-term debt, notes payable or current
portion of 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 Effect; (b) neither the
Company nor any of its Subsidiaries has entered into any
transaction or agreement that is material to the Company and its
Subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its Subsidiaries taken as a whole; and (c) neither the
Company nor any of its Subsidiaries has sustained any material loss
or interference with its business 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 General Disclosure Package and the Prospectus.
(xiv)
Capitalization . The Company has an authorized
capitalization as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus; all the outstanding
shares of capital stock of the Company have been duly authorized
and validly 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 Registration
Statement, the General 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 General 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 authorized and validly issued, are fully paid and
non-assessable, except, in the case of the Bank, as provided in 12
U.S.C. §55, 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.
(xv) Bank
Holding Company; Financial Holding Company . The Company has
been duly registered as a bank holding company and qualified as a
financial holding company under the applicable provisions of the
Bank Holding Company Act of 1956, as amended. The Company and the
Bank are in compliance in all material respects with all applicable
laws administered by and regulations of the Board of Governors of
the Federal Reserve System (the “ Federal Reserve
Board ”), the Federal Deposit Insurance Corporation (the
“ FDIC ”), the Office of the Comptroller of the
Currency (the “ OCC ”) and any other federal or
state bank regulatory authority (collectively, the “ Bank
Regulatory Authorities ”) with jurisdiction over the
Company or the Bank, other than where such failures to comply would
not, individually or in the aggregate, have a Material Adverse
Effect. Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus,
neither the Company nor the Bank is a party to
6
any written
agreement or memorandum of understanding with, or a party to, any
commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of an extraordinary
supervisory letter that is enforceable against the Company or the
Bank and would result in sanctions against the Company or the Bank
from, or has adopted any board resolutions at the request of, any
Bank Regulatory Authority which restricts materially the conduct of
its business, or in any manner relates to its capital adequacy, its
credit policies or its management except, in each case, as
individually or in the aggregate would not reasonably expected to
have a Material Adverse Effect, nor have any of them been advised
by any Bank Regulatory Authority that it is contemplating issuing
or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter
or similar submission, or any such board resolutions.
(xvi) Due
Authorization . The Company has full right, power and authority
to execute and deliver this Agreement and issue and sell the
Securities 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, the issuance and
sale of the Securities and the consummation by it of the
transactions contemplated hereby or by the Registration Statement,
the General Disclosure Package and the Prospectus has been duly and
validly taken.
(xvii)
Underwriting Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(xviii) No
Violation or Default . Neither the Company nor any of the
Subsidiaries is (a) in violation of its charter or by-laws or
similar organizational documents; (b) 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 the Subsidiaries is a
party or by which the Company or any of the Subsidiaries is bound
or to which any of the property or assets of the Company or any of
the Subsidiaries is subject; or (c) 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 (b) and (c) above, for any such default
or violation that would not, individually or in the aggregate, have
a Material Adverse Effect.
(xix) No
Conflicts . The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Securities
and the consummation of the transactions contemplated hereby will
not (a) 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; (b) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its Subsidiaries; or (c) 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 (a) and
(c) above, for any such conflict, breach, violation or default
that would not, individually or in the aggregate, have a Material
Adverse Effect.
(xx) No
Consents Required . No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is
7
required for
the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Securities and the
consummation of the transactions contemplated hereby, except
(a) for such consents, approvals, authorizations, orders and
registrations or qualifications as have already been made or
obtained or will be made or obtained prior to the Closing Date;
(b) registration under the Securities Act of the offer and
sale of the Securities, which has been effected; (c) as may be
required under applicable state securities laws in connection with
the purchase and distribution of the Securities by the Underwriter
or under the rules and regulations of Nasdaq or FINRA; or
(d) where the failure to obtain such consent, authorization,
order or qualification would not have a Material Adverse
Effect.
(xxi) Legal
Proceedings . Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, there
are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened, 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, would reasonably be expected to have a Material
Adverse Effect.
(xxii)
Independent Accountants . Ernst & Young 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.
(xxiii) Title
to Real and Personal Property . The Company and its
Subsidiaries have good and marketable title to, or have valid
rights to lease or otherwise use, all items of real and personal
property that are material to the respective businesses of the
Company and its Subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title
except those that (a) do not materially interfere with the use
made or to be made of such property by the Company and its
Subsidiaries, (b) are disclosed in the Registration Statement,
the General Disclosure Package and Prospectus or (c) would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(xxiv) 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 to carry on their businesses as presently
conducted; and the Company and its Subsidiaries have not received
any notice of any claim of infringement of or conflict with any
such rights of others that, individually or in the aggregate, if
determined adversely to the Company or any of its Subsidiaries,
would reasonably be expected to have a Material Adverse
Effect.
(xxv) No
Undisclosed Relationships . Except as would not have a Material
Adverse Effect, 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 a registration
statement to be filed with the Commission and that is not so
described in the Registration Statement, the General Disclosure
Package and the Prospectus.
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(xxvi)
Investment Company Act . The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the
Registration Statement, the General 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
”).
(xxvii)
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, or requests
for extensions to file such tax returns have been timely filed or
granted and have not expired, except where the Company and its
Subsidiaries are contesting in good faith such taxes and except
where the failure to so file or pay would not reasonably be
expected to have a Material Adverse Effect; and except as otherwise
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there is no tax deficiency that has
been asserted against the Company or any of its Subsidiaries or any
of their respective properties or assets.
(xxviii)
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 General 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 General
Disclosure Package and the Prospectus or would not, individually or
in the aggregate, have a Material Adverse Effect, 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 knowledge that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course.
(xxix) 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.
(xxx)
Compliance with Environmental Laws . The Company and its
Subsidiaries (a) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of
human health or safety, the environment, natural resources,
hazardous or toxic substances or wastes, pollutants or contaminants
(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, and (c) have not received notice
of any actual or potential liability under or relating to any
Environmental Laws, including for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except for any such failure to
comply, or failure to receive required permits, licenses or
approvals, or liability, as would not, individually or in the
aggregate, have a Material Adverse Effect.
(xxxi)
Compliance with ERISA . (a) 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
9
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 material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Code; (b) 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; (c) for each Plan
that is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA, no failure to satisfy the
minimum funding standards (within the meaning of Sections 412
or 430 of the Code or Section 302 of ERISA) applicable to such
Plan, has occurred or is reasonably expected to occur, whether or
not waived; (d) no determination that any Plan is, or is
expected to be, in “at risk” status (within the meaning
of Section 430 of the Code or Title IV of ERISA) has occurred
or is reasonably expected to occur; (e) 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); (f) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur; and (g) 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).
(xxxii)
Disclosure Controls . The Company and its Subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its Subsidiaries have carried ou
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