Exhibit 1.1
Jones Lang LaSalle
Incorporated
6,500,000 Shares of Common
Stock
(Par Value $0.01 Per
Share)
UNDERWRITING
AGREEMENT
June 10, 2009
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
as Representative of the several
Underwriters
c/o Merrill Lynch &
Co.
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Jones Lang LaSalle Incorporated, a
Maryland corporation (the “Company”), proposes to sell
to the several underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representative”) are acting as representative,
6,500,000 shares of Common Stock, $0.01 par value (“Common
Stock”), of the Company (said shares to be issued and sold by
the Company being hereinafter called the “Firm
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to 975,000 additional shares
of Common Stock to cover any overallotments (the “Option
Securities;” the Option Securities, together with the Firm
Securities, being hereinafter called the “Securities”).
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representative as used
herein shall mean you, as Underwriter, and the terms Representative
and Underwriters shall mean either the singular or plural as the
context requires.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an “automatic shelf registration statement,” as defined
under Rule 405 (“Rule 405”) of the rules and
regulations (the “1933 Act Regulations”) of the
Commission promulgated under the Securities Act of 1933, as amended
(the “1933 Act”), on Form S-3 (No. 333-159854),
including the related base prospectus, covering the registration of
shares of Common Stock, shares of preferred stock, debt securities,
depositary shares, warrants, subscription rights, stock purchase
contracts and stock purchase units under the 1933 Act, and the
offer and sale thereof from time to time in accordance with Rule
415 of the 1933 Act Regulations. Such registration statement, and
any post-effective amendment thereto, became effective upon filing
with the Commission in accordance with Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”). Promptly after
execution and delivery of this Agreement, the Company will prepare
and file a prospectus supplement relating to the Securities in
accordance with the provisions of Rule 430B of the 1933 Act
Regulations (“Rule 430B”) and paragraph
(b) of Rule 424 of the 1933 Act Regulations
(“Rule 424(b)”). Any information included in such
prospectus supplement that was omitted from such registration
statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to
Rule 430B is referred to herein as “Rule 430B
Information.” Each base prospectus and prospectus supplement
used in connection with the offering of the Securities that omitted
Rule 430B Information is referred to herein collectively as a
“preliminary prospectus.” Such registration statement,
at any given time, including any amendments thereto to such time,
the exhibits and any schedules thereto at such time, the documents
incorporated or deemed incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by the 1933 Act Regulations, is herein referred to as the
“Registration Statement”; provided ,
however , that “Registration Statement” without
reference to a time means the Registration Statement as of the time
of the first contract of sale for the Securities, which time shall
be considered the “new effective date” of the
Registration Statement with respect to the Underwriters and the
Securities (within the meaning of Rule 430B(f)(2)). The final base
prospectus and the final prospectus supplement, in the form first
furnished or made available to the Underwriters for use in
connection with the offering of the Securities, including the
documents incorporated or deemed incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act prior to
the time of the execution of this Agreement, are referred to herein
collectively as the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any
preliminary prospectus or 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”) or
its Interactive Data Electronic Applications system
(“IDEA”).
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, the Prospectus or the General Disclosure Package (as
defined herein) (or other references of like import) shall be
deemed to include all such financial statements and schedules and
other information which is or is deemed to be incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, any preliminary
prospectus, the Prospectus or the General Disclosure Package, as
the case may be, prior to the execution of this Agreement; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus, the Prospectus
or the General Disclosure Package shall be deemed to include the
filing of any document under the Securities Exchange Act of 1934,
as amended (the “1934 Act”), which is or is deemed to
be incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration
Statement, such preliminary prospectus, the Prospectus or the
General Disclosure Package, as the case may be, at or after the
execution of this Agreement.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as of the date hereof, as of the Applicable
Time (as defined below), as of the Closing Date (as defined in
Section 3 hereof), and as of each Date of Delivery (as defined
in Section 2 hereof), as follows:
The Company meets the requirements
for use of Form S-3 under the 1933 Act. The Registration Statement
was filed by the Company with the Commission not earlier than three
years prior to the date hereof. The Registration Statement became
effective under the 1933 Act upon filing with the Commission. The
Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Securities have
been and remain eligible for registration by the Company on an
automatic shelf registration statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued under the 1933 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 no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) of the 1933 Act Regulations has been received
by the Company. No order preventing or suspending the use of any
preliminary prospectus or the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened or contemplated by the
Commission or the securities authority of any jurisdiction. Any
request on the part of the Commission for additional information
has been complied with.
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At the respective times the
Registration Statement and any post-effective amendments thereto
became effective, at each deemed effective date with respect to the
Underwriters and the Securities pursuant to Rule 430B(f)(2), at the
Closing Date and at each Date of Delivery, if any, the Registration
Statement and any amendments and supplements thereto complied,
complies and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and did
not, does 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, at the Closing Date or at any
Date of Delivery, included, includes or will include an untrue
statement of a material fact or omitted, omits 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.
Any preliminary prospectus
(including the prospectus filed as part of the Registration
Statement or any amendment thereto) complied when so filed in all
material respects with the 1933 Act and the 1933 Act Regulations
and any such preliminary prospectus and the Prospectus delivered or
made available to the Underwriters for use in connection with the
offering of Securities was and will, at the time of such delivery,
be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR/IDEA, except to the extent
permitted by Regulation S-T.
As of the Applicable Time, each
Issuer Free Writing Prospectus (as defined below) identified on
Schedule II , the Statutory Prospectus (as defined below)
and the information agreed to in writing by the Company and the
Underwriters as the information to be conveyed orally by the
Underwriters to purchasers of the Securities at the Applicable Time
as set forth on Schedule II , all considered together
(collectively, the “General Disclosure Package”), did
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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The representations and warranties
in the preceding three paragraphs shall not apply to statements in
or omissions from the Registration Statement, or any post-effective
amendment thereto, or the Prospectus or the General Disclosure
Package, or any amendments or supplements thereto, made in reliance
upon and in conformity with information furnished to the Company in
writing by the Representative on behalf of the Underwriters
expressly for use in the Registration Statement or any
post-effective amendment thereto, or the Prospectus or the General
Disclosure Package, or any amendments or supplements thereto, as
the case may be.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
7:00 p.m. (New York City time) on June 10, 2009 or such other
time as agreed by the Company and the Underwriters.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
(including any identified on Schedule II hereto) 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 with the Commission 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
retained in the Company’s records pursuant to Rule
433(g).
“Statutory Prospectus”
as of any time means the base prospectus that is included in the
Registration Statement and the preliminary prospectus supplement
relating to the Securities immediately prior to that time,
including the documents incorporated or deemed incorporated by
reference therein at such time.
(a) The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package 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 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”), as
applicable, and, when read together with the other information in
the Registration Statement, the General Disclosure Package or the
Prospectus, as the case may be, (a) at the time the
Registration Statement became effective, (b) at the earlier of
the time the Prospectus was first used and the date and time of the
first contract of sale of the Securities, (c) at the Closing
Date and (d) at each Date of Delivery, if any, 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 in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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(b) (A) At the original
effectiveness of the Registration Statement, (B) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the 1933 Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the
1933 Act Regulations) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the 1933 Act Regulations,
and (D) as of the execution of this Agreement, the Company was
and is a “well-known seasoned issuer,” as defined in
Rule 405.
(c) (i) At the original
effectiveness of the Registration Statement, (ii) at the
earliest time after the original effectiveness of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of the 1933
Act Regulations) of the Securities and (iii) as of the
execution of this Agreement (with such time of execution being used
as the determination date for purposes of this clause (iii)), the
Company was not and is not an “ineligible issuer,” as
defined in Rule 405, without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an ineligible issuer.
(d) 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 Company notified or
notifies the Underwriters as described in Section 5(c) hereof,
did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the General Disclosure
Package or the Prospectus, including any document incorporated or
deemed incorporated by reference therein and any preliminary or
other prospectus deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any such Issuer Free Writing
Prospectus based upon and in conformity with information furnished
to the Company in writing by the Representative on behalf of the
Underwriters expressly for use therein.
(e) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with full power
and authority (corporate and other) to own or lease, as the case
may be, its properties and to operate its properties and conduct
its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is
duly qualified to do business as a foreign corporation and is in
good standing in all other jurisdictions in which its ownership or
lease of property or the operation of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or reasonably be expected to
have, individually or in the aggregate, a material adverse effect
on the condition (financial or otherwise), business, earnings,
properties, assets or business prospects of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (“Material
Adverse Effect”).
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(f) Each Material Subsidiary (as
defined below) has been duly formed and is validly existing as a
corporation, limited partnership or limited liability company, as
the case may be, in good standing under the laws of the
jurisdiction of its organization, with full power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus, except where the
failure to be in good standing would not have, or be reasonably
expected to have, a Material Adverse Effect, and is duly qualified
to do business as a foreign corporation, partnership or limited
liability company in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or be reasonably expected to
have, a Material Adverse Effect; all of the issued and outstanding
capital stock or other ownership interests of each Material
Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and were offered in compliance with
all applicable laws (including, without limitation, federal and
state securities laws) in all material respects; and except as
described in the Registration Statement, the General Disclosure
Package and the Prospectus, each Material Subsidiary’s
capital stock or other ownership interests, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interests, liens, mortgages, encumbrances, pledges,
claims, defects or other restrictions of any kind (collectively,
“Liens”), except where such Liens would not have, or
reasonably be expected to have, a Material Adverse Effect. None of
such equity interests was issued in violation of the preemptive or
other similar rights of any securityholder of such Material
Subsidiary. Except as described in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or subscribe for equity interests or other securities
of any Material Subsidiary. For purposes of this Agreement, the
term “Material Subsidiary” or “Material
Subsidiaries” shall mean any or all of the following
subsidiaries of the Company, as the case may be: Jones Lang LaSalle
Finance B.V., Jones Lang LaSalle Co-Investment, Inc., Jones Lang
LaSalle International, Inc., Jones Lang LaSalle Americas, Inc.,
Jones Lang LaSalle Limited, Jones Lang LaSalle GmbH, Jones Lang
LaSalle New England, LLC, Jones Lang LaSalle Brokerage, Inc.,
LaSalle Investment Management, Inc. and LaSalle Investment
Management, Asia Pte Ltd.
(g) The Company’s authorized
capitalization is as set forth in the documents incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus; 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 under the caption “Description of
Capital Stock;” the outstanding shares of Common Stock are
duly listed and admitted and authorized for trading on the New York
Stock Exchange, Inc. (the “NYSE”) and, at the Closing
Date, the Securities will have been approved for listing on the
NYSE, subject to official notice of issuance; and, except as set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding.
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(h) The Securities and all other
outstanding shares of capital stock of the Company have been duly
and validly authorized; all outstanding shares of capital stock of
the Company are, and, when the Securities to be issued and sold by
the Company have been issued and delivered and paid for in
accordance with this Agreement on the Closing Date and each Date of
Delivery, such Securities will have been, validly issued, fully
paid and nonassessable, will have been, or will be, offered and
sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws) in all material
respects, will conform, in all material respects, to the
description thereof contained in the Registration Statement, the
General Disclosure Package and the Prospectus; and the stockholders
of the Company have no preemptive or other similar rights with
respect to the Securities to be issued and sold by the Company.
Upon payment of the purchase price and issuance and delivery of the
Securities to be issued and sold by the Company in accordance
herewith, the Underwriters will receive good, valid and marketable
title to such Securities, free and clear of all Liens.
(i) Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection
with this offering.
(j) Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
1933 Act with respect to any securities or to require the Company
to include such securities in the securities registered pursuant to
the Registration Statement.
(k) Neither the Company nor any of
the Material Subsidiaries (i) is in violation of its charter,
by-laws, certificate of formation, operating agreement or
partnership agreement or similar organizational documents,
(ii) is in default (whether with or without the giving of
notice or passage of time or both) in the performance or observance
of any obligation, agreement, term, covenant or condition contained
in a contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, ground lease, development agreement,
reciprocal easement agreement, deed restriction, utility agreement,
management agreement or other agreement or instrument to which it
is a party or by which it is bound, or to which any of its
properties or assets is subject (collectively, “Agreements
and Instruments”), or (iii) is in violation of any
statute, law, ordinance, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority to which it or any
of its properties or assets is subject, except, in the case of
clauses (ii) and (iii), for such defaults or violations that
would not have, or reasonably be expected to have, a Material
Adverse Effect.
(l) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required to be made or obtained by the Company or
the Material Subsidiaries in connection with the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, filings or orders (i) as have been obtained
under the 1933
7
Act, (ii) as may be required
under the state securities or blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated herein and in the
General Disclosure Package and the Prospectus and (iii) the
absence of which would not have, or reasonably be expected to have,
a Material Adverse Effect.
(m) The execution, delivery and
performance of this Agreement by the Company and consummation of
the transactions contemplated hereby do not and will not (whether
with or without the giving of notice or passage of time or both)
conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default (or give rise to
any right of termination, acceleration, cancellation, repurchase or
redemption) or Repayment Event (as hereinafter defined) under, or
result in the creation or imposition of a Lien (other than those
described in the Registration Statement, the General Disclosure
Package and the Prospectus) upon any of the properties or assets of
the Company or the Material Subsidiaries pursuant to, (i) any
statute, law, rule, ordinance, regulation, judgment, order or
decree of any court, domestic or foreign, regulatory body,
administrative agency, governmental body, arbitrator or other
authority, domestic or foreign, having jurisdiction over the
Company or any of the Material Subsidiaries or any of their
properties or assets, (ii) any term, condition or provision of
any Agreements or Instruments, or (iii) the charter, by-laws,
certificate of formation, operating agreement or partnership
agreement or similar organizational documents, as applicable, of
the Company or the Material Subsidiaries, except, in the case of
clauses (i) and (ii), for such conflicts, breaches, defaults,
violations, rights, Repayment Events or Liens that are disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus or as would not have, or reasonably be expected to have,
a Material Adverse Effect. The Company has full power and authority
to authorize, issue and sell the Securities as contemplated by this
Agreement. As used herein, “Repayment Event” means any
event or condition which, without regard to compliance with any
notice or other procedural requirements, gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of the Material
Subsidiaries.
(n) This Agreement has been duly and
validly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the
Underwriters, is a valid and binding agreement of the
Company.
(o) The Company and the Material
Subsidiaries possess all certificates, authorities, licenses,
consents, approvals, permits and other authorizations
(“Licenses”) issued by appropriate governmental
agencies or bodies or third parties necessary to conduct the
business now operated by them or proposed to be operated by them,
are in compliance with the terms and conditions of all such
Licenses, and have not received any notice of proceedings relating
to the revocation or modification of any such Licenses except where
the failure to possess any such License or to comply with any of
its terms and conditions, or an adverse determination in any
proceeding, would not individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse
Effect.
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(p) The consolidated financial
statements of the Company and its subsidiaries included or
incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly in all material respects the consolidated financial position
of the Company at the dates indicated and the consolidated
statement of earnings, operations, shareholders’ equity,
changes in equity and cash flows of the Company for the periods
specified; and said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto
and subject to normal year-end adjustments in the case of any
unaudited interim financial statements) and have been prepared on a
consistent basis with the books and records of the Company. The
supporting schedules included or incorporated or deemed
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information
included or incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the financial
statements included or incorporated or deemed incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus. The pro forma financial statements and
the related notes and other pro forma financial information
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly in all
material respects the information shown therein, have been prepared
in accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referenced to therein. No other historical or pro
forma financial statements (or schedules) are required by the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations to be included or incorporated or deemed incorporated
by reference in the Registration Statement or the Prospectus. All
disclosures contained in the Registration Statement, the General
Disclosure Package or the Prospectus, if any, regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply in all
material respects with Regulation G under the 1934 Act and
Item 10 of Regulation S-K of the 1933 Act Regulations, to the
extent applicable.
(q) To the knowledge of the Company
without having conducted any independent audit, the representations
and warranties contained in paragraph (p) of this
Section 1 are true and correct with respect to the financial
statements and any supporting schedules of Staubach Holdings, Inc.
(“Staubach”) and its consolidated subsidiaries,
incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus; except where the failure to be so true and correct
would not reasonably be expected to have a Material Adverse
Effect.
(r) KPMG LLP, who certified the
financial statements and supporting schedules of the Company
included or incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and
the
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Prospectus and delivered letters
referred to in Section 6(g) and (h) hereof, are
independent registered certified public accountants as required by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations.
(s) To the knowledge of the Company,
McGladrey & Pullen, LLP, who certified certain financial
statements and supporting schedules of Staubach and its
subsidiaries included or incorporated or deemed incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus and delivered letters referred to in
Section 6(g) and (h) hereof, were, with respect to
Staubach and its subsidiaries as it relates to those financial
statements and supporting schedules, independent registered
certified public accountants as required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(t) There are no material transfer
taxes or other similar fees or charges under federal law or the
laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of
the Securities.
(u) All federal, state, local and
foreign tax returns or valid extensions filed for, and reports
required to be filed by the Company or any of the Material
Subsidiaries, in each case, to the extent material
(“Returns”), have been timely filed; all such Returns
are true, correct and complete in all material respects; and all
federal, state, county, local or foreign taxes, charges, fees,
levies, fines, penalties or other assessments, including all net
income, gross income, sales and use, ad valorem, transfer, gains,
profits, excise, franchise, real and personal property, gross
receipts, capital stock, disability, employment, pay-roll, license,
estimated, stamp, custom duties, severance or withholding taxes or
charges imposed by any Governmental Authority (as defined
hereafter) (including any interest and penalties (civil or
criminal) on or additions to any such taxes and any expenses
incurred in connection with the determination, settlement or
litigation of any tax liability), in each case, to the extent
material (“Taxes”), shown in such Returns or on
assessments received by the Company or any of the Material
Subsidiaries or otherwise due and payable or claimed to be due and
payable by any Governmental Authority, have been paid, except for
any such tax, charge, fee, levy, fine, penalty or other assessment
that (i) is currently being contested in good faith,
(ii) would not have, or reasonably be expected to have, a
Material Adverse Effect or (iii) is described in the
Registration Statement, the General Disclosure Package and the
Prospectus. Neither the Company nor any of the Material
Subsidiaries has requested any extension of time within which to
file any Return, which Return has not since been filed within the
extended time. Neither the Company nor any of the Material
Subsidiaries has executed any outstanding waivers or comparable
consents regarding the application of the statute of limitations
with respect to any Taxes or Returns, except for those waivers or
comparable consents that would not have, or reasonably be expected
to have, a Material Adverse Effect. No audits or other
administrative proceedings or court proceedings are presently
pending nor threatened against the Company or any of the Material
Subsidiaries with regard to any Taxes or Returns of the Company or
any of the Material Subsidiaries, except for those audits or other
administrative proceedings or court proceedings that would not
have, or reasonably be expected to have, a Material Adverse Effect,
and no taxing authority has notified the Company or any of the
Material Subsidiaries in writing that it intends to investigate its
Tax affairs.
10
(v) Each of the Company and the
Material Subsidiaries has complied in all material respects with
the provisions of the Code relating to the payment and withholding
of Taxes, including, without limitation, the withholding and
reporting requirements under Sections 1441 through 1446, 3401
through 3406, and 6041 and 6049 of the Code, as well as similar
provisions under any other laws, and has, within the time and in
the manner prescribed by law, withheld and paid over to the proper
governmental authorities all material amounts required in
connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party.
(w) Neither the Company nor any of
its subsidiaries (including any predecessor entities) has
distributed, or prior to the later of the Closing Date (or the
final Date of Delivery) and the completion of the distribution of
the Securities, will distribute, any offering material in
connection with the offering or sale of the Securities other than
the Registration Statement, the General Disclosure Package and the
Prospectus and any other written materials consented to by the
Representative pursuant to Section 5(f) hereof) (it being
understood that no representation is made with respect to any other
materials distributed by the Representative).
(x) Each of the Company and the
Material Subsidiaries is in compliance, in all material respects,
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in
ERISA) for which the Company would have any material liability;
neither the Company nor any of the Material Subsidiaries has
incurred or expects to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Code, including the
regulations and published interpretations thereunder; and each
“pension plan” for which the Company or any of the
Material Subsidiaries would have any liability and that is intended
to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and nothing has occurred,
whether by action or by failure to act, which would cause the loss
of such qualification, except where the failure to be so qualified
would not have, or reasonably be expected to have, a Material
Adverse Effect.
(y) (1) Except as described in the
Registration Statement, the General Disclosure Package and the
Prospectus, the Company and the Material Subsidiaries have good and
marketable title to all real properties owned by them, in each case
free from Liens except for such Liens that would not reasonably be
expected to have a Material Adverse Effect; (2) the Company or
the Material Subsidiaries have obtained an owner’s title
insurance policy in an amount at least equal to the cost of
acquisition from a title insurance company with respect to each of
its real estate properties except where the failure to obtain such
policies would not reasonably be expected to have a Material
Adverse Effect; (3) except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the
Company and the Material Subsidiaries
11
hold any leased real or personal
property under valid and enforceable leases, with no exceptions
except those exceptions that would not reasonably be expected to
have a Material Adverse Effect; and (4) neither the Company
nor the Material Subsidiaries has knowledge of any pending or
threatened condemnation proceeding, zoning change, or other
proceeding or action that will in any manner affect the size of,
use of, improvements on, construction on or access to any of the
real properties owned or leased by them (each, a
“Property” and collectively, the
“Properties”), except as would not be reasonably likely
to have a Material Adverse Effect.
(z) Each of the Company and the
Material Subsidiaries is adequately insured by insurers of
recognized financial responsibility against such losses and risks
customary in the businesses in which they are or will be engaged as
described in the Registration Statement, the General Disclosure
Package and the Prospectus, except where failure to be so insured
would not reasonably be expected to have a Material Adverse Effect;
all policies of insurance and fidelity or surety bonds insuring the
Company or any of the Material Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect, except as would not reasonably be likely to have
a Material Adverse Effect; each of the Company and the Material
Subsidiaries is in compliance with the terms of such policies and
instruments, except as would not be reasonably likely to have a
Material Adverse Effect; except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, there
are no claims by the Company or the Material Subsidiaries under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause, except where such denial would not be reasonably likely to
have a Material Adverse Effect; and, except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of the Material
Subsidiaries has been refused any insurance coverage sought or
applied for where the failure to obtain such coverage would
reasonably be expected to have a Material Adverse Effect; and
neither the Company nor any of the Material Subsidiaries has any
reason to believe that any of them 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 to conduct its business as currently conducted or as
proposed to be conducted in the Registration Statement, the General
Disclosure Package and the Prospectus at a cost that would not have
a Material Adverse Effect.
(aa) Except as otherwise disclosed
in the Registration Statement, the General Disclosure Package and
the Prospectus, (i) the Company and the Material Subsidiaries
and the Properties have been and are in compliance with, and
neither the Company nor any of the Material Subsidiaries has any
liability under, applicable Environmental Laws (as hereinafter
defined) except as would not reasonably be expected to have a
Material Adverse Effect, (ii) neither the Company nor any of
the Material Subsidiaries, or, to the knowledge of the Company, the
prior owners or occupants of the Properties at any time or any
other person or entity (including adjacent landowners or lessees)
has at any time released (as such term is defined in
Section 101(22) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
§§ 9601-9675 (“CERCLA”)) or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter
defined) on, to or from the Properties, except for such releases or
dispositions as would not be reasonably likely
12
to have a Material Adverse Effect,
(iii) neither the Company nor any of the Material Subsidiaries
intends to use the Properties or any subsequently acquired
properties, other than in material compliance with applicable
Environmental Laws, (iv) neither the Company nor any of the
Material Subsidiaries knows of any seepage, leak, discharge,
release, emission, spill, or dumping of Hazardous Materials into
waters (including, but not limited to, groundwater and surface
water) on, beneath or adjacent to the Properties, or onto lands or
other assets owned by the Company or the Material Subsidiaries from
which Hazardous Materials might seep, flow or drain into such
waters except for such as would not be reasonably likely to have a
Material Adverse Effect, (v) neither the Company nor any of
the Material Subsidiaries has received any notice of, or has any
knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or
pursuant to any Environmental Law or common law by any governmental
or quasi-governmental body or any third party with respect to the
Properties or other assets described in the Registration Statement,
the General Disclosure Package and the Prospectus or arising out of
the conduct of the Company or the Material Subsidiaries, except for
such claims that would not be reasonably likely to have a Material
Adverse Effect and (vi) neither the Properties nor any other
assets currently owned by the Company or the Material Subsidiaries
is included or, to the best of the Company’s and the Material
Subsidiaries’ knowledge, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA by the United
States Environmental Protection Agency (the “EPA”) or,
to the best of the Company’s and the Material
Subsidiaries’ knowledge, proposed for inclusion on any
similar list or inventory issued pursuant to any other applicable
Environmental Law or issued by any other Governmental Authority. To
the knowledge of the Company and the Material Subsidiaries, there
have been no and are no (i) aboveground or underground storage
tanks, (ii) polychlorinated biphenyls (“PCBs”) or
PCB-containing equipment, (iii) asbestos or asbestos
containing materials, (iv) lead based paints,
(v) dry-cleaning facilities, or (vi) wet lands, in each
case in, on, under, or adjacent to any Property the existence of
which has had, or is reasonably expected to have, a Material
Adverse Effect.
As used herein, “Hazardous
Material” shall include, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous
wastes, toxic substances, or related materials, asbestos or any
hazardous material as defined by any applicable federal, state or
local environmental law, ordinance, statute, rule or regulation
including, without limitation, CERCLA, the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. §§5101-5128,
the Solid Waste Disposal Act, as amended, 42 U.S.C. §§
6901-6992k, the Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. §§ 11001-11050, the Toxic Substances
Control Act, 15 U.S.C. §§ 2601-2692, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§
136-136y, the Clean Air Act, 42 U.S.C. §§ 7401-7671q, the
Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C.
§§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
§§ 300f-300j-26, and the Occupational Safety and Health
Act, 29 U.S.C. §§ 651-678, as any of the above statutes
may be amended from time to time, and in the regulations
promulgated pursuant to any of the foregoing (including
environmental statutes not specifically defined herein)
(individually, an “Environmental Law” and collectively,
“Environmental Laws”) or by any federal, state or local
governmental authority having or claiming jurisdiction over the
properties and other assets of the Company or any of its
subsidiaries described in the Registration Statement, the General
Disclosure Package and the Prospectus (a “Governmental
Authority”).
13
(bb) No labor problem or dispute
with the employees of the Company or any of the Material
Subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, and the Company is not aware of any
existing or, to the knowledge of the Company, imminent labor
disturbance by the employees of the Company or the Material
Subsidiaries or the Company’s or the Material
Subsidiaries’ principal suppliers, contractors or customers,
that, in the case of each of the foregoing, would have a Material
Adverse Effect, except as set forth in or contemplated in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(cc) The Company and the Material
Subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Registration Statement, the General Disclosure Package and the
Prospectus to be conducted, except as would not reasonably be
expected to have a Material Adverse Effect. Except as set forth in
the Registration Statement, the General Disclosure Package and the
Prospectus or as would not reasonably be expected to have a
Material Adverse Effect, (a) to the knowledge of the Company,
there are no rights of third parties to any such Intellectual
Property, (b) to the knowledge of the Company, there is no
infringement by third parties of any such Intellectual Property,
(c) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others challenging
the Company’s rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a
reasonable basis for any such claim, (d) there is no pending
or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim and
(e) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any other fact which would form a
reasonable basis for any such claim.
(dd) Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company, the Material Subsidiaries or any
of their properties or assets that, if determined adversely to the
Company or the Material Subsidiaries, would have, or reasonably be
expected to have, a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material
in the context of the sale of the Securities; and no such actions,
suits or proceedings are, to the Company’s knowledge,
threatened.
14
(ee) Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, since the date of the latest audited financial
statements included or incorporated or deemed incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus, (1) there has been no Material
Adverse Effect, (2) there have been no transactions entered
into by the Company or the Material Subsidiaries, other than in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries taken as a whole, (3) other than
in the ordinary course of business, neither the Company nor any of
the Material Subsidiaries has incurred any obligation or liability,
direct, contingent or otherwise that is or would be material to the
Company and the Material Subsidiaries taken as a whole and
(4) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(ff) Neither the Company nor any of
its subsidiaries is or, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the General Disclosure Package and the Prospectus,
will be, an “investment company” as defined in the
Investment Company Act of 1940, as amended (the “1940
Act”).
(gg) There is no franchise, contract
or other document to which the Company or any of its subsidiaries
is a party that is required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be
described in the Registration Statement, the General Disclosure
Package or the Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(hh) No relationship, direct or
indirect, exists between or among the Company on the one hand, and
the directors, officers, stockholders, customers or suppliers of
the Company on the other hand, which is required pursuant to the
1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations to be described in the Registration Statement, the
General Disclosure Package or the Prospectus which is not so
described.
(ii) Except (i) to the extent
not required to be described or filed pursuant to the 1933 Act, the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations,
(ii) as described in the Registration Statement, the General
Disclosure Package and the Prospectus or (iii) for the
agreements referred to herein, neither the Company’s nor the
Material Subsidiaries’ directors, officers, interest holders,
stockholders, members, partners, members of management, other
employees or their respective affiliates is a party to any
contracts or agreements with the Company or the Material
Subsidiaries and neither the Company’s nor the Material
Subsidiaries’ directors, officers, interest holders, members,
partners, members of management, other employees or their
respective affiliates owns any property or right, tangible or
intangible, which is used in any material manner by the Company or
any of the Material Subsidiaries.
(jj) Each of the Company and its
subsidiaries (i) makes and keeps accurate books and records in
all material respects and (ii) maintains internal accounting
controls which provide reasonable assurance that
(A) transactions are executed in accordance with
management’s authorization, (B) transactions are
recorded as necessary to permit preparation of its
15
financial statements in conformity
with GAAP and to maintain accountability for its assets,
(C) access to its assets is permitted only in accordance with
management’s authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Since the end of the Company’s most
recent audited fiscal year, there has been (I) no material
weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (II) 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.
(kk) The Company and its
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by
them in the reports filed or submitted under the 1934 Act is
recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to management, including the principal
executive officer or officers and principal financial officer or
officers, as appropriate, to allow timely decisions regarding
disclosure.
(ll) Except as would not have a
Material Adverse Effect, (i) the operations of the Company and
the Material Subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, 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 (ii) no action, suit or proceeding
by or before any court or governmental agency, authority or body or
any arbitrator involving any of the Company or the Material
Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(mm) Neither the Company nor any of
the Material Subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of the Material Subsidiaries, 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, and the Company, the Material
Subsidiaries and, to the knowledge of the Company, its 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.
16
(nn) None of the Company, the
Material Subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
the Material Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the Company
will not knowingly directly or indirectly use the proceeds of the
offering of the Securities, 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 currently subject to any U.S. sanctions administered
by OFAC.
(oo) None of the Company, the
Material Subsidiaries or, to the knowledge of the Company, their
respective officers, directors, members or controlling persons has
taken, or will take, directly or indirectly, any action designed to
or that might reasonably be expected to result in a violation of
Regulation M under the 1934 Act or cause or result in stabilization
or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Securities.
(pp) The Company intends to apply
the net proceeds from the sale of the Securities substantially in
accordance with the description set forth in the General Disclosure
Package and
