JETBLUE AIRWAYS
CORPORATION
23,000,000 SHARES OF COMMON
STOCK
Morgan Stanley
& Co. Incorporated
1585
Broadway
New York, NY 10036
JetBlue Airways
Corporation, a Delaware corporation (the “ Company
”), proposes to issue and sell to Morgan Stanley & Co.
Incorporated (the “ Underwriter ”) 23,000,000
shares of its common stock, par value $0.01 per share (the “
Firm Securities ”). The Company also proposes to issue
and sell to the Underwriter not more than an additional 3,450,000
shares of its common stock, par value $0.01 per share (the “
Additional Securities ”), if and to the extent that
the Underwriter shall have determined to exercise the right to
purchase such Additional Securities granted to the Underwriter in
Section 2 hereof (the “ Over-allotment Option
”) and subject to the terms of the Option Letter Agreement
(as defined below). The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the “
Securities . ” The shares of common stock of
the Company, par value $0.01 per share, to be outstanding after
giving effect to the sales contemplated hereby are hereinafter
referred to as the “Common Stock .
”
Concurrently with
the issuance of the Securities, the Company is offering, in an
offering (the “ Concurrent Offering ”)
registered under the Securities Act of 1933, as amended (the
“ Securities Act ”), by means of a prospectus
supplement and related prospectus, $100,000,000 principal amount of
its 6.75% Convertible Debentures due 2039 (series A) (the “
Series A Firm Securities ”) to be issued pursuant
to the provisions of an indenture dated as of March 16, 2005,
as amended and supplemented by a supplemental indenture to be dated
as of June 9, 2009 (as so amended and supplemented, the
“ Series A Indenture ”) between the Company
and Wilmington Trust Company, as trustee (the “
Trustee ”) and $75,000,000 principal amount of its
6.75% Convertible Debentures due 2039 (series B) (the “
Series B Firm Securities ” and, together with the
Series A Firm Securities, the “ Debentures
”) to be issued pursuant to the provisions of an indenture
dated as of March 16, 2005, as amended and supplemented by a
supplemental indenture to be dated as of June 9, 2009 (as so
amended and supplemented, the “ Series B
Indenture ”) between the Company and the Trustee. The
Underwriter is also acting as the representative of the
underwriters in the Concurrent Offering. The Company has granted
the underwriters of the Concurrent Offering an option to purchase
up to an additional $15,000,000 principal amount of the
Series A Firm Securities and $11,250,000 principal amount of
the Series B Firm Securities to cover over-allotments, if any.
The Debentures will be convertible into shares of Common Stock (the
“ Underlying Securities ”) in accordance with
the terms thereof and the indenture under which each series is
issued. Neither this offering nor the Concurrent Offering is
conditioned upon the consummation of the other.
Concurrently with
the issuance of the Securities, the Company has also entered into
an option letter agreement (the “ Option Letter
Agreement ”) with Deutsche Lufthansa AG
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(“
Lufthansa ”), dated as of June 3, 2009, whereby
the Company granted Lufthansa an option to purchase up to 15.6% of
the shares of Common Stock that the Company would have otherwise
provided to the Underwriter as part of the Over-allotment Option,
but only to the extent that the Underwriter exercises the
Over-allotment Option.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus, (File No. 333-135545) on Form S-3, relating to the
securities (the “ Shelf Securities ”), including
the Securities, to be issued from time to time by the Company. The
registration statement as amended to the date of this Agreement,
including the information (if any) deemed to be a part of the
registration statement at the time of effectiveness pursuant to
Rule 430A or Rule 430B under the Securities Act, is
hereinafter referred to as the “ Registration
Statement ,” and the related prospectus covering the
Shelf Securities, dated June 30, 2006, in the form first used
to confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Basic Prospectus
.” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Securities in the form
first used to confirm sales of the Securities (or in the form first
made available to the Underwriter by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Prospectus
,” and the term “ preliminary prospectus ”
means any preliminary form of the Prospectus.
For purposes of
this Agreement, “ free writing prospectus ” has
the meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means the preliminary
prospectus, together with the free writing prospectuses, if any,
each identified in Schedule I hereto, and “ broadly
available road show ” means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to
any person. As used herein, the terms “Registration
Statement,” “Basic Prospectus,”
“preliminary prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“ amendment ,” “ supplement
,” and “ amend ” as used herein with
respect to the Registration Statement, the Basic Prospectus, the
Time of Sale Prospectus, any preliminary prospectus or free writing
prospectus shall include all documents subsequently filed by the
Company with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), that
are deemed to be incorporated by reference therein.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, the Underwriter that:
(a) The Company
meets the requirements for the use of Form S-3 under the Securities
Act; the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the Commission. The
Registration Statement is an automatic shelf registration statement
(as defined in Rule 405 under the Securities Act), the Company
is a well-known seasoned issuer (as defined in Rule 405 under
the Securities Act) eligible to use the Registration Statement as
an automatic shelf registration statement and the
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Company has not
received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(i) Each document,
if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied, or will comply when so filed, in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does
not contain any 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, (iv) the
Registration Statement and the Prospectus comply as to form and, as
amended or supplemented, if applicable, will comply as to form in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (v) the Time of
Sale Prospectus does not, and at the time of each sale of the
Securities in connection with the offering when the Prospectus is
not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as
then amended or supplemented by the Company, if applicable, 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, (vi) each broadly available road show, if any,
when considered together with the Time of Sale Prospectus, does 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 and (vii) the Prospectus, as of the date thereof,
does not contain and, as amended or supplemented, if applicable, on
the Closing Date (as defined in Section 4) 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, except
that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, based
upon information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use
therein.
(b) The Company is
not an “ineligible issuer” in connection with the
offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule I hereto
forming part of the Time of Sale Prospectus, and broadly available
road shows, if any, each furnished to the Underwriter before first
use,
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the Company has
not prepared, used or referred to, and will not, without the prior
consent of the Underwriter, prepare, use or refer to, any free
writing prospectus.
(c) The
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Time of Sale
Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows
or changes in financial position of the Company and its
consolidated subsidiaries for the periods specified. Except as
stated therein, such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved. The financial
statement schedules, if any, included or incorporated by reference
in the Registration Statement and the Time of Sale Prospectus
present fairly the information required to be stated therein. The
summary consolidated financial data included in the Time of Sale
Prospectus present fairly the information shown therein in all
material respects and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(d) The Company
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct
its business as described in the Time of Sale Prospectus and the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(e) Each of the
Company’s subsidiaries has been duly incorporated or
organized, is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or organization, has
the power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so duly
incorporated, organized or qualified or be in good standing would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock or membership interests, as the case may be, of the
Company’s subsidiaries have been duly and validly authorized
and issued (except to the extent that the failure to be so duly and
validly authorized and issued would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole), are
fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims.
(f) This Agreement
has been duly authorized, executed and delivered by the
Company.
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(g) The Company
has an authorized capitalization as set forth in the Time of Sale
Prospectus and the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus under the caption “Description
of Capital Stock.”
(h) The Securities
have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such
Securities will not be subject to any preemptive or similar
rights.
(i) The execution
and delivery by the Company of this Agreement and the Option Letter
Agreement, the consummation by the Company of the transactions
contemplated by this Agreement and the Option Letter Agreement and
compliance by the Company with the terms of this Agreement and the
Option Letter Agreement have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the certificate of incorporation or
by-laws of the Company and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien or encumbrance upon any property or assets of the
Company or any of its subsidiaries under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other material
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it may be bound or to which any
of its properties may be subject, or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company, any of its
subsidiaries, or any of its properties (other than the securities
or Blue Sky laws of the various states, as to which the Company
makes no representation or warranty), except, in the case of either
clause (A) or (B) above, for such conflicts, breaches,
defaults, liens or encumbrances that would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. No consent, approval,
authorization, order or license of, or filing with or notice to,
any government, governmental instrumentality, regulatory body or
authority or court, domestic or foreign, is required for the valid
authorization, issuance and delivery of the Securities, the valid
authorization, execution, delivery and performance by the Company
of its obligations under this Agreement or the Option Letter
Agreement or the consummation by the Company of the transactions
contemplated by this Agreement or the Option Letter Agreement,
except such as are required under the Securities Act, the Exchange
Act and the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(j) There has not
occurred any material adverse change, or any development reasonably
likely to involve a material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus.
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(k) There are no
legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject (i) other than
proceedings accurately described in all material respects in each
of the Time of Sale Prospectus and the Prospectus and proceedings
that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or the
Option Letter Agreement or to consummate the transactions
contemplated by this Agreement or the Time of Sale Prospectus or
(ii) that are required to be described in the Registration
Statement or the Prospectus and are not so described.
(l) Each
preliminary prospectus relating to the Securities filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder.
(m) The Company
and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
(ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) To the
knowledge of the Company, there are no costs or liabilities
associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(o) 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 Prospectus, will not be required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(p) Subsequent to
the respective dates as of which information is given in the
Registration Statement and the Time of Sale Prospectus,
(i) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or
contingent, or entered into any material transaction, in each case,
not in the ordinary course of business or as described in,
contemplated by or incorporated by reference into the Time of
Sale
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Prospectus and
the Prospectus (including, without limitation, aircraft
acquisitions or financing and equity incentive plan grants so
described in or contemplated by the Time of Sale Prospectus and the
Prospectus); (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock (other
than repurchases of unvested shares of the Company’s capital
stock pursuant to its equity incentive plans); (iii) there has
not been any material change in the capital stock, short-term debt
or long-term debt of the Company except in each case as described
in, contemplated by or incorporated by reference into the Time of
Sale Prospectus and the Prospectus (including, without limitation,
aircraft financing and equity incentive plan grants so described
in, contemplated by or incorporated by reference into the Time of
Sale Prospectus and the Prospectus); and (iv) there has been
no prohibition or suspension of the operation of the
Company’s aircraft, including as a result of action taken by
the Federal Aviation Administration (“ FAA ”) or
the Department of Transportation.
(q) Each of the
Company and its subsidiaries has good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by it which is material to the business of
the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances and defects, except liens on aircraft and
engines, parts, rotables, and other equipment of the Company and
such as are described in or incorporated by reference into the Time
of Sale Prospectus or such as do not materially affect the value of
such property or do not interfere with the use made and proposed to
be made of such property by the Company or its subsidiaries, as the
case may be; and any real property and buildings held under lease
by the Company or any of its subsidiaries are held by it under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
or its subsidiaries, in each case except as described in or
contemplated by the Time of Sale Prospectus and the
Prospectus.
(r) (i) Each
of the Company and its subsidiaries possesses such permits,
licenses, approvals, consents and other authorizations
(collectively, “ Government Licenses ”) issued
by the appropriate federal, state, local or foreign regulatory
agencies or bodies, including the Department of Transportation, the
FAA or the Federal Communications Commission necessary to conduct
the business now operated by it; (ii) each of the Company and
its subsidiaries is in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; (iii) all of the Government Licenses are valid and in
full force, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; and (iv) the Company has not received any notice
of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, is
reasonably likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
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(s) Except as
described in or contemplated by the Time of Sale Prospectus and the
Prospectus, no material labor dispute with the employees of the
Company or its subsidiaries exists or, to the knowledge of the
Company, is imminent; and the Company is not aware, but without any
independent investigation or inquiry, of any existing, threatened
or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could result
in any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole.
(t) Each of the
Company and its subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are customary in the businesses in which it is engaged;
provided , that the Company currently maintains war risk
insurance on its aircraft under the FAA’s insurance program
authorized under 49 U.S.C. Section 44301 et seq.
(“ War Risk Insurance ”); each of the Company
and its subsidiaries has not been refused any insurance coverage
sought or applied for other than in connection with instances where
the Company was seeking to obtain insurance coverage at more
attractive rates; and, other than with respect to War Risk
Insurance coverage, the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, except as described in or
contemplated by the Time of Sale Prospectus and the
Prospectus.
(u) The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorizations in all material respects and (ii) transactions are
recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability.
(v) The Company
(i) is an “air carrier” within the meaning of 49
U.S.C. Section 40102(a); (ii) holds an air carrier operating
certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49 of the United States Code for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more
of cargo; and (iii) is a “citizen of the United
States” as defined in 49 U.S.C.
Section 401102.
(w) Ernst &
Young LLP, who reported on the annual consolidated financial
statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, are an independent
registered public accounting firm as required by the Securities
Act.
(x) Neither the
Company nor any of its subsidiaries, nor, to the Company’s
knowledge, any director, officer, or employee, agent or
representative of the Company or of any of its subsidiaries, has
taken any action in furtherance of an offer, payment, promise to
pay, or authorization or approval of the payment or giving of
money, property, gifts or anything else of value, directly or
indirectly, to any “government official”
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(including any
officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any
person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or
candidate for political office) to influence official action or
secure an improper advantage in violation of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “ FCPA ”); and the Company and
its subsidiaries have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures
designed to promote and achieve compliance with such laws and with
the representation and warranty contained herein.
(y) The operations
of the Company and its subsidiaries are and have been conducted at
all times in material compliance with the applicable anti-money
laundering statutes of jurisdictions where the Company and its
subsidiaries conduct business, the rules and regulations thereunder
and any related or similar rules or regulations, issued,
administered or enforced by any governmental agency (collectively,
the “ Anti-Money Laundering Laws ”), and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(z) (i) The
Company represents that neither the Company nor any of its
subsidiaries (collectively, the “ Entity ”) or,
to the knowledge of the Entity, any director or officer of the
Entity, is an individual or entity (“ Person ”)
that is, or is owned or controlled by a Person that is:
(A) the subject of
any international economic sanctions administered or enforced by
the U.S. Department of Treasury’s Office of Foreign Assets
Control (“ OFAC ”) or the United Nations
Security Council (“ UNSC ”) (collectively,
“ Sanctions ”), nor
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan or Syria).
(ii)
Except as permitted by OFAC, the Entity represents and covenants
that it will not, to the best of its knowledge and after reasonable
and due inquiry, use the proceeds of the offering, directly or
indirectly, or to the best of its knowledge and after reasonable
and due inquiry, lend, contribute or otherwise make available such
proceeds, directly or indirectly, to any subsidiary, joint venture
partner or other Person:
(A) to fund or
facilitate any activities or business of or with any Person or in
any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(B) in any other
manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
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