COMPASS DIVERSIFIED HOLDINGS
COMPASS GROUP DIVERSIFIED HOLDINGS LLC
To the Manager
named in Schedule I hereto
for the Underwriters named in
Schedule II hereto
Compass Group
Diversified Holdings LLC, a Delaware limited liability company (the
“ Company ”), for itself and as sponsor of
Compass Diversified Holdings, a statutory trust formed under the
laws of the State of Delaware (the “ Trust ”),
the Trust and Compass Group Management LLC, a Delaware limited
liability company (the “ CODI Manager ”),
propose to issue and sell to the several underwriters named in
Schedule II hereto (the “ Underwriters
”), for whom you are acting as manager (the “
Manager ”), the number of shares of the Trust set
forth in Schedule I hereto (the “ Firm
Shares ”). The Company, for itself and as sponsor of the
Trust, the Trust and the CODI Manager also propose to issue and
sell to the several Underwriters not more than the number of
additional shares of the Trust set forth in Schedule I
hereto (the “ Additional Shares ”) if and to the
extent that you, as Manager of the offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase
such shares of the Trust granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares. ” The shares of the Trust to be outstanding
after giving effect to the sales contemplated hereby are
hereinafter referred to as the “ Trust Stock.
”
Immediately prior
to the delivery of the Firm Shares and the Additional Shares, if
any, to the Underwriters, the Trust will issue the Firm Shares and
the Additional Shares, if any, in exchange for, and as
consideration for, an equal number of limited liability company
interests (the “ New Trust Interests ”) of the
Company that were designated as “Trust Interests” under
the Company’s Second Amended and Restated Operating
Agreement, dated as of January 9, 2007, governing the Company
(the “ Operating Agreement ”). The limited
liability company interests of the Company outstanding as of the
date hereof and to be outstanding after giving effect to the
issuance of the New Trust Interests are hereinafter referred to as
the “ Trust Interests ”.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to the securities (the “
Shelf Securities ”), including the Shares, 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 part of the registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 430B
under the Securities Act of 1933, as amended (the “
Securities Act ”), is hereinafter referred to as the
“ Registration Statement ”, and the related base
prospectus covering the Shelf Securities filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement is hereinafter referred to as the “ Basic
Prospectus. ” The Basic Prospectus, as supplemented by
the prospectus supplement specifically relating to the Shares in
the form first used to confirm sales of the Shares (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 “ 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 Basic Prospectus and any
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 “ supplement ,” “
amendment ,” 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, for itself and
as sponsor of the Trust, represents and warrants to and agrees with
the Underwriters that:
(a) 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
threatened by the Commission.
(b) 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, and as amended or
supplemented, if applicable, will comply 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 Shares 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 does not contain and, as amended or
supplemented, 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, except that the
representations and warranties set forth in this paragraph do not
apply
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to statements
or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Managers expressly for use therein.
(c) 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 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 electronic
road shows, if any, each furnished to you before first use, the
Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free
writing prospectus.
(d) The
Company has been duly formed, is validly existing as a limited
liability company under the laws of the State of Delaware, is in
good standing under the laws of the State of Delaware and has the
limited liability company power and authority to own its properties
and conduct its business as described in the Time of Sale
Prospectus and the Prospectus. The Company and each of the
Businesses (as defined below) 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 where the failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, net worth, management,
earnings, cash flows, business, operations or properties of the
Company and the Businesses, taken as a whole, whether or not
arising from transactions in the ordinary course of business (a
“ Material Adverse Effect ”).
(e) The
Company directly owns the outstanding voting securities of the
entities enumerated on Schedule IV hereto (such entities being
referred to herein as the “ Businesses ”) in the
percentages shown in the Time of Sale Prospectus and the
Prospectus. The Businesses are the only significant subsidiaries of
the Company as defined by Rule 1-02 of Regulation S-X.
Each of the Businesses has been duly organized, is validly existing
as a corporation or limited liability company, as applicable, in
good standing under the laws of the jurisdiction of its
organization, has the requisite power and authority and possesses
all certificates, authorizations, licenses, permits and consents
(“ Permits ”), including but not limited to, all
Permits relating to Environmental Laws (as defined below) that are
material and necessary to own its property and to conduct its
business, in each case, 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 where the failure to be so qualified, in good
standing or to have such Permits would not have a Material Adverse
Effect. All the outstanding shares of capital stock of each of the
Businesses have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Time of Sale Prospectus and the
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Prospectus, all
outstanding shares of capital stock of each of the Businesses owned
by the Company are owned free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances.
(f) As
of the date of this Agreement, the CODI Manager owned all of the
issued and outstanding Allocation Interests (as defined in the
Operating Agreement) of the Company, the Trust owned all of the
issued and outstanding Trust Interests (as defined in the Operating
Agreement) of the Company, and there were no other securities of
the Company outstanding, without giving effect to any issuances of
securities contemplated herein. All of the Trust Interests and all
of the Allocation Interests currently outstanding are, and upon
delivery of a number of New Trust Interests to the Trust in
exchange for the Shares to be issued by the Trust under this
Agreement, the Trust Interests will be, validly issued, fully paid
and nonassessable and free of statutory and contractual preemptive
rights or rights of first refusal, and holders of the Shares shall
not be obligated personally for any of the debts, obligations or
liabilities of the Company, whether arising in contract, tort or
otherwise. Except as described in the Time of Sale Prospectus and
the Prospectus, no person has the right, contractual or otherwise,
to cause the Company or the Trust to issue or sell to it any Trust
Interests or other securities of the Company. No person has the
right, contractual or otherwise, to cause the Company or the Trust
to issue or sell to it any Allocation Interests.
(g) The
Operating Agreement has been duly authorized, executed and
delivered by the members of the Company and is the valid and
binding obligation of the Company and the members of the Company.
The Trust Interests and the Operating Agreement conform in all
material respects to the descriptions thereof set forth in the Time
of Sale Prospectus and the Prospectus, and such descriptions
conform to the rights set forth in the instruments defining the
same.
(h) The
Company, as sponsor of the Trust, is authorized by the Amended and
Restated Trust Agreement of the Trust, dated as of
December 21, 2007 and effective as of January 1, 2007
(the “ Trust Agreement ”) among the Company, as
sponsor, The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee, and the Regular Trustees, as
defined therein, to act in such capacity to execute and deliver
this Agreement on behalf of the Trust, to cause the Trust to issue
the Shares to be sold under this Agreement, to sell and accept
payment therefor, and otherwise to consummate the transactions
contemplated herein. This Agreement has been duly authorized,
executed and delivered by the Company, for itself and as sponsor of
the Trust.
(i) Except
as set forth in the Time of Sale Prospectus and the Prospectus, the
Company, the Trust and the Businesses are not and will not, as of
the Closing Date and any Option Closing Date, be restricted by
their respective organizational documents or any indenture,
mortgage, deed of trust, loan or credit agreement, promissory note,
lease, statutory trust, servicing agreement, contract, arrangement,
understanding, document or any other instrument (“
Contract ”) or any Permit from declaring and paying
any dividends or distribution on the Trust Interests, in the case
of the Company, on the Shares, in the case of the Trust, and to the
Company, in the case of the Businesses, in each case, in accordance
with their respective organizational documents as set forth in the
Time of Sale Prospectus and the Prospectus, or that
4
would restrict
the payment of interest on, or the repayment of principal of, any
loans or advances by the Businesses to the Company.
(j) There
are no Contracts between the Company and any person that would give
rise to a claim against the Company or any Underwriter for a
brokerage commission, finder’s fee or similar payment with
respect to the offer and sale of the Shares.
(k) Each
preliminary prospectus 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.
(l) Except
as disclosed in the Time of Sale Prospectus and the Prospectus,
there are no Contracts between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the Shares registered
pursuant to the Registration Statement.
(m) Subsequent
to the respective dates as of which information is given in each of
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, (i)the Trust, the Company and each of the Businesses
have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction; (ii)each of
the Trust, the Company and the Businesses 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 ordinary and customary dividends; and (iii)there has not been
any material change in the capital stock, short-term debt or
long-term debt of the Trust, the Company and each of the
Businesses, except in each case as described in each of the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, respectively.
(n) No
consent, approval, authorization, or order of, or filing with, any
domestic or foreign regulatory, administrative or governmental
agency, body or authority, any domestic or foreign self-regulatory
authority, or any similar agency, or any court, or arbitration body
or agency (domestic or foreign) (each, a “ Governmental
Authority ”), is required in connection with the issue
and sale of the Shares by the Company and the Trust hereunder,
except such as have been obtained and made under the Securities
Act, such as may be required under state securities laws or such as
may be required under the bylaws or rules and regulations of the
Financial Industry Regulatory Authority (“ FINRA
”).
(o) There
are no statutes, regulations or Contracts which are required to be
described in or filed as exhibits to the Registration Statement
which have not been so described or filed as required. The
statements in the Time of Sale Prospectus and the Prospectus under
the headings “Risk Factors”, “Description of
Shares” and “Material U.S. Federal Income Tax
Considerations”, insofar as such statements summarize legal
matters, agreements, documents or proceeding discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents of proceedings.
5
(p) No
labor problem or dispute with the employees of the Company or any
of the Businesses exists or, to the Company’s knowledge, is
threatened or imminent, that would reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in
the Time of Sale Prospectus and the Prospectus (exclusive of any
supplement thereto).
(q) Neither
the Company nor any of the Businesses is in violation of or default
under, and neither the issue and sale of the Trust Stock or the
Trust Interests hereunder nor the consummation of any other of the
transactions herein contemplated (including the issuance and sale
of the Shares and the use of the proceeds from the sale of the
Shares as described in the Time of Sale Prospectus and the
Prospectus under the heading “Use of Proceeds”), nor
the fulfillment of the terms hereof has or will conflict with or
result in a breach or violation of, constitute a default under, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Businesses pursuant to,
(i) the Certificate of Formation or Operating Agreement of the
Company or the charter or bylaws, or similar organizational
documents, of any of the Businesses, (ii) any federal, state,
local and foreign law, statute, rule, regulation and ordinance, or
any decision, directive or order of any Governmental Authority
(“ Laws ”), including but not limited to all
Laws relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes or
pollutants or contaminants (collectively, “ Environmental
Laws ”), applicable to the Company and the Businesses or
(iii) the terms of any Contract to which the Company or any of
the Businesses is a party or by which the Company or any of the
Businesses is bound or pursuant to which any of the properties of
the Company or any of the Businesses are subject, except in the
case of (ii) and (iii), where any such violations or defaults
would not, individually or in the aggregate, have a Material
Adverse Effect.
(r) Except
as disclosed in the Time of Sale Prospectus and the Prospectus,
(i) each of the Company and the Businesses has good and valid
title to all property and assets owned by it that are necessary to
conduct its respective business as described in the Time of Sale
Prospectus and the Prospectus and (ii) each of the Company and
the Businesses holds any leased real or personal property under
valid and enforceable leases that are necessary to conduct its
respective business as described in the Time of Sale Prospectus and
the Prospectus, except to the extent that the failure to have such
good and valid title or hold such valid and enforceable leases
would not have a Material Adverse Effect. Immediately prior to the
consummation of the transactions contemplated herein, the Company
will own and will have good and valid title to the Shares to be
sold hereunder, free and clear of any lien, charge or encumbrance;
and upon delivery of such Shares to the Underwriters and payment of
the Purchase Price therefor as herein contemplated, the
Underwriters will receive good and valid title to the Shares
purchased by them from the Company, free and clear of any lien,
charge or encumbrance.
(s) Each
of the Company and the Businesses owns or possesses adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, trade secrets and other intellectual property
(collectively, “ Intellectual Property Rights ”)
that it purports to own and that are necessary to conduct its
respective business as described in the Time of Sale Prospectus and
the Prospectus and none of the Company or the Businesses have
received any notice of any claim of infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property Rights, except to the extent that the failure to own or
possess such
6
Intellectual
Property Rights or where such claim of infringement of such
conflict with asserted rights of others would not have a Material
Adverse Effect.
(t) The
Company is not, and will not, after giving effect to the offering
and sale of the Shares and the application of the proceeds as
described in the Time of Sale Prospectus and the Prospectus, be an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the
Commission’s rules and regulations thereunder.
(u) There
are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company, the
Trust or any of the Businesses is a party or to which any of the
properties of the Company, the Trust or any of the Businesses is
subject (i) other than proceedings accurately described in all
material respects in the Time of Sale Prospectus and proceedings
that would not have a Material Adverse Effect, or that would not
have a material adverse effect on the power or ability of the
Company or the Trust to perform their obligations under this
Agreement or to consummate the transactions contemplated by 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.
(v) The
Company, the Trust and each of the Businesses has filed all tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure to so file would
not have a Material Adverse Effect) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a
Material Adverse Effect.
(w) The
consolidated financial statements, together with related schedules,
exhibits and notes, included in the Time of Sale Prospectus, the
Prospectus and the Registration Statement present fairly the
financial condition, results of operations, cash flows and changes
in financial position of the Trust, the Company and the Businesses
on the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and related
schedules, exhibits and notes have been prepared in accordance with
United States generally accepted accounting principles consistently
applied throughout the periods involved, except as may be expressly
disclosed therein. The summary financial data set forth under the
caption “Summary Financial Data” in the Time of Sale
Prospectus, the Prospectus and the Registration Statement presents
fairly the information shown therein, and has been compiled on a
basis consistent with that of the related financial statements
included in the Time of Sale Prospectus, the Prospectus and the
Registration Statement.
(x) The
Company and each of the Businesses maintain 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;
(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. The
Company and the Businesses have not become aware of any material
weakness in their internal control over financial
reporting
7
and there has
been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting since December 31, 2008.
(y) The
Company and the Businesses maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e)
under the Exchange Act) which are (i) designed to ensure that
information required to be disclosed by the Company in the 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 and that
material information relating to the Company and the Businesses is
made known to the Company’s principal executive officer and
principal financial officer by others within the Company and the
Businesses to allow timely decisions regarding disclosure, and
(ii) effective in all material respects to perform the
functions for which they were established. Based on the evaluation
of the Company’s and each Business’s disclosure
controls and procedures described above, the Company is not aware
of (i) any significant deficiency in the design or operation
of internal controls which could adversely affect the
Company’s ability to record, process, summarize and report
financial data or any material weaknesses in internal controls or
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls. Since the most recent evaluation
of the Company’s disclosure controls and procedures described
above, there have been no significant changes in internal controls
or in other factors that could significantly affect internal
controls.
(z) There
is and has been no failure on the part of the Company and, to the
knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley
Act ”) and the rules and regulations promulgated
thereunder, including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(aa) Each
of the Company and the Businesses maintains insurance covering its
respective properties, operations, personnel and businesses as it
reasonably believes to be financially responsible in amounts it
reasonably deems adequate.
(bb) Except
as disclosed in the Time of Sale Prospectus and the Prospectus,
subsequent to the respective dates as of which such information is
given or included in the Time of Sale Prospectus and the
Prospectus, there has not occurred, or been any event, circumstance
or development that could result in, any material adverse change in
the condition (financial or otherwise), prospects, net worth,
management, earnings, operations, cash flows, business, operations
or properties of the Company and the Businesses, taken as a
whole.
(cc) Neither
the Company nor, to its knowledge, any of its affiliates has taken
or will take, directly or indirectly, any action that constituted,
or any action designed to, or that might reasonably be expected to
cause or result in, stabilization or manipulation of the price of
any security of the Trust to facilitate the sale or resale of the
Shares.
(dd) To
the Company’s knowledge, no officer, director or nominee for
director or 5% or greater shareholder of the Company has a direct
or indirect affiliation or association with any member of
FINRA.
8
(ee) Neither
the Company nor any of Businesses nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of the Businesses, is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “
FCPA ”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA. The Company, the Businesses and, to the
knowledge of the Company, their affiliates have conducted their
businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith.
(ff) Neither
the Company nor any of Businesses nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any the Businesses is currently the subject of any
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“ OFAC ”). The
Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person that is the subject of any sanctions administered by
OFAC.
(gg) The
operations of the Company and the Businesses are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements and the money laundering
statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws ”) 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 the
Businesses with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened.
2.
Representations and Warranties of the Trust . The Company,
as sponsor of the Trust, represents and warrants to and agrees with
the several Underwriters that:
(a) The
Trust has been duly created and is validly existing and in good
standing as a statutory trust under the laws of the State of
Delaware, has the trust power and authority to conduct its business
as described in the Time of Sale Prospectus and Prospectus and is
not required to be qualified or authorized to do business in any
other jurisdiction.
(b) There
are 31,525,000 shares of Trust Stock outstanding as of the date of
this Agreement. All of the shares of Trust Stock currently
outstanding are, and upon delivery of the Shares to be sold under
this Agreement, all of the shares of Trust Stock will be, duly
authorized, validly issued, fully paid and nonassessable and free
of statutory and contractual preemptive rights or rights of first
refusal, and holders of the Shares will have the same personal
liability as holders of shares of a private corporation for profit
organized under the Delaware General Corporation Law (“
DGCL ”). Except as described in the Time of Sale
Prospectus and the
9
Prospectus, no
person has the right, contractual or otherwise, to cause the Trust
to issue or sell to it any shares of Trust Stock or other
securities of the Trust.
(c) The
Trust Agreement has been duly authorized, executed and delivered by
the Company and the Regular Trustees and is a valid and binding
obligation of the Company and the Regular Trustees. The Shares and
the Trust Agreement conform in all material respects to the
descriptions thereof in the Time of Sale Prospectus and the
Prospectus, and such descriptions conform to the rights set forth
in the instruments defining the same.
(d) As
of the Closing Date and any Option Closing Date, the Trust shall
have an authorized and outstanding capitalization as set forth
under the heading of the Time of Sale Prospectus and the Prospectus
entitled “Pro Forma Capitalization” (subject, in the
case of the Closing Date and in the event that the Closing Date and
the Option Closing Date occur concurrently, to the issuance of the
Additional Shares, and subject, in the case of the Option Closing
Date, to the issuance of the Additional Shares).
(e) Except
as disclosed in the Time of Sale Prospectus and the Prospectus,
there are no Contracts between the Trust and any person granting
such person the right to require the Trust to file a registration
statement under the Securities Act with respect to any securities
of the Trust owned or to be owned by such person or to require the
Trust to include such securities in the Shares registered pursuant
to the Registration Statement.
(f) The
Trust has all power and authority necessary to execute and deliver
this Agreement and the Shares, and to perform its obligations
hereunder; and the issue and sale of the Shares hereunder have not
and will not conflict with or result in a breach or violation of,
constitute a default under, or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company
or any of the Businesses pursuant to (A) the Certificate of
Trust of the Trust or the Trust Agreement, (B) any Laws
applicable to the Trust or the Businesses, or (C) the terms of
any Contract to which the Trust, the Company or any of the
Businesses is a party or by which the Trust, the Company or any of
the Businesses is bound or pursuant to which any of the properties
of the Trust, the Company or any of the Businesses are
subject.
(g) The
Trust is not, and will not, after giving effect to the offering and
sale of the Shares and the application of the proceeds as described
in the Time of Sale Prospectus and the Pro
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