Exhibit 1.1
15,000,000 Shares
BOSTON PROPERTIES,
INC.
COMMON STOCK (PAR VALUE $.01 PER
SHARE)
UNDERWRITING
AGREEMENT
June 5, 2009
June 5, 2009
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
J.P. Morgan Securities
Inc.
383 Madison Avenue
New York, NY 10179
Ladies and Gentlemen:
Boston Properties, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell
to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you are acting as managers
(the “Managers”), the number of shares of its common
stock, par value $.01 per share, set forth in Schedule I hereto
(the “Firm Shares”). The Company also proposes to issue
and sell to the Managers not more than the number of additional
shares of its common stock, par value $.01 per share, of the
Company set forth in Schedule I hereto (the “Additional
Shares”) if and to the extent that you, as Managers of the
offering, shall have determined to exercise the right to purchase
such shares of common stock granted to the Managers in
Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the
“Shares.” The shares of common stock, par value $.01
per share of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the
“Common Stock.” If the firm or firms listed in Schedule
II hereto include only the Managers listed in Schedule I hereto,
then the terms “Underwriters” and
“Managers” as used herein shall each be deemed to refer
to such firm or firms.
The Company and Boston Properties
Limited Partnership, a Delaware limited partnership and the
Company’s subsidiary (the “Operating
Partnership”), each confirms its agreement with you and
understands that the Underwriters propose to make a public offering
of the Shares as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3ASR (No. 333-155309), including a
prospectus, relating to the Common Stock and other securities
(the
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“Shelf Securities”), including the
Shares. The registration statement as amended, 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 prospectus
covering the Shelf Securities dated November 12, 2008 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 “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 filed with the Commission
pursuant to Rule 424(b).
For purposes of this Agreement,
(i) “free writing prospectus” has the meaning set
forth in Rule 405 under the Securities Act, (ii) “Time
of Sale Prospectus” means the preliminary prospectus together
with the free writing prospectuses, each identified in Schedule
III hereto, and the pricing information included in Schedule
I hereto, and (iii) “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 incorporated by reference
therein.
1. Representations and
Warranties . The Company and the Operating Partnership each
severally represents and warrants to each Underwriter as of the
date hereof, and as of the Closing Date (defined herein) and each
Option Closing Date (defined herein) and agrees with each
Underwriter that:
(a) The Registration Statement has
become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. The Company is a well known seasoned issuer (as defined in
Rule 405 under the Securities Act)
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eligible to use the Registration Statement as an
automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement as of the date hereof does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iv) the Registration Statement and
the Time of Sale 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 Securities in connection
with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as hereinafter
defined), 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 to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information
relating to the Underwriters furnished to the Company in writing by
the Underwriters through you 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
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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 III
hereto, and electronic road shows, if any, furnished to you before
first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, use or refer to, any free
writing prospectus.
(d) PricewaterhouseCoopers LLP, who
certified the financial statements and supporting schedules, if
any, of the Company and its Subsidiaries included or incorporated
by reference in the Time of Sale Prospectus are independent
registered public accountants with respect to the Company and its
Subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Accounting Oversight Board (United
States) and as required by the Securities Act and the Securities
Act Regulations.
(e) The consolidated financial
statements included or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, together with the related notes, present fairly the
financial position of the Company and its Subsidiaries at the dates
indicated or for the periods specified, as the case may be; said
financial statements have been prepared in conformity with
generally accepted accounting principles of the United States of
America (“GAAP”) applied on a consistent basis
throughout the periods involved. The selected financial data and
the summary financial information included or incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements included or incorporated by
reference in the Registration Statement. Other than the historical
financial statements included or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, no other historical financial statements are required
by the Securities Act or the Securities Act Regulations to be
included or incorporated by reference therein.
(f) Since March 31, 2009,
except as described in the Time of Sale Prospectus or in documents
incorporated by reference therein, (i) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries (as hereinafter defined) considered as
one enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (ii) no
material casualty loss or material condemnation or other material
adverse event with respect to any of the commercial real estate
properties owned by the Company as of the date of this Agreement
(the “Properties”) has occurred, and
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(iii) there have been no transactions entered
into by the Company or any of its Subsidiaries, other than those in
the ordinary course of business, which are material with respect to
the Company and its Subsidiaries considered as one
enterprise.
(g) The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Time of Sale Prospectus and to
enter into and perform its obligations under this Agreement; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(h) Each of the subsidiaries of the
Company set forth on Schedule IV hereto (each a
“Subsidiary” and, collectively, the
“Subsidiaries”), has been duly organized and is validly
existing as a general or limited partnership, limited liability
company or corporation, as the case may be, in good standing (in
the case of corporations and limited partnerships) under the laws
of the jurisdiction of its organization, has partnership or
corporate power and authority, as the case may be, to own, lease
and operate its properties and to conduct its business as described
in the Time of Sale Prospectus and is duly qualified as a foreign
entity to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect. The
Subsidiaries collectively own not less than 90% of the consolidated
assets of the Company and its subsidiaries as of March 31,
2009. All of the issued and outstanding capital stock of each of
the Subsidiaries that is a corporation has been duly authorized and
validly issued, is fully paid and non-assessable, and all of the
partnership interests in each Subsidiary that is a partnership are
validly issued and fully paid. Except as otherwise disclosed in
Schedule V hereto or in the Time of Sale Prospectus, all
such shares and interests, as the case may be, are owned by the
Company, directly or through Subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except where such security interest, mortgage, pledge,
lien, encumbrance, claim or equity would not reasonably be expected
to result in a Material Adverse Effect. None of the outstanding
shares of capital stock or partnership interests of any Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(i) The outstanding shares of Common
Stock have been duly authorized and validly issued and are fully
paid and non-assessable; none of the
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outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(j) Each of the Company and the
Operating Partnership has full right, power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(k) The Common Stock conforms, in
all material respects, to all statements relating thereto contained
in each of the Time of Sale Prospectus and the Prospectus or in
documents incorporated therein by reference and such description
conforms, in all material respects, to the rights set forth in the
instruments defining the same; no holder of the Shares will be
subject to personal liability by reason of being such a
holder.
(l) The issued and outstanding units
of limited partnership of the Operating Partnership (“OP
Units”), if any, have been duly authorized and validly issued
and are fully paid. OP Units issued and sold in connection with the
acquisition of properties currently under contract to be acquired
have been and will be offered, issued and sold in compliance with
all applicable laws (including, without limitation, federal and
state securities laws).
(m) Neither the Company nor any of
its Subsidiaries is in violation of its organizational documents or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or
any Subsidiary is subject (collectively, “Agreements and
Instruments”) except for such defaults that would not result
in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated in this Agreement and the Time of Sale
Prospectus (including the issuance and sale of the Shares and the
use of the proceeds from the sale of the Shares as described in the
Prospectus under the caption “Use of Proceeds”) and
compliance by the Company and the Operating Partnership with their
obligations under this Agreement have been duly authorized by all
necessary corporate or partnership action, as the case may be, and
(except as contemplated by the Time of Sale Prospectus) do not and
will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the commercial real estate properties owned by the Company
as of the date of this Agreement (the “Properties”) or
any other property or assets of the Company or any Subsidiary
pursuant to, the Agreements and Instruments or violations of any
applicable law, statute, rule, regulation, judgment, order, writ
or
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decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Subsidiary or any of their assets,
properties or operations (except for such conflicts, breaches or
defaults or liens, charges, encumbrances or violations that would
not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the organizational
documents of the Company or any Subsidiary. As used herein, the
term “Repayment Event” means any event or condition
which 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
Subsidiary.
(n) No material labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent.
(o) There is no action, suit or
proceeding before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed in the Time of
Sale Prospectus), or which might reasonably be expected, if
determined adversely to the Company or any Subsidiary, to result in
a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the Properties or assets thereof or
the consummation of the transactions contemplated in this Agreement
or the performance by the parties of their obligations
hereunder.
(p) Commencing with the taxable year
ended December 31, 1997 and through the date hereof, the
Company is organized in conformity with the requirements for
qualification as a real estate investment trust (a
“REIT”) under the Internal Revenue Code of 1986, as
amended (the “Code”), and its method of operation has
enabled and will enable it to meet the requirements for taxation as
a REIT under the Code.
(q) There are no contracts or
documents which are required to be described in the Registration
Statement or the Time of Sale Prospectus or to be filed as exhibits
thereto or to documents incorporated by reference therein which
have not been so described and filed as required.
(r) The Company’s Common Stock
is listed on the New York Stock Exchange
(“NYSE”).
(s) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
and the Operating Partnership of their obligations hereunder, in
connection with the offering, issuance or sale of the Shares under
this Agreement or the
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consummation of the transactions contemplated by
this Agreement, except such as have been already obtained or as may
be required under the Securities Act or the Securities Act
Regulations and foreign or state securities or blue sky
laws.
(t) The Company and its Subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”)
issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its Subsidiaries has received any written notice
of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(u) (i) The Company and its
Subsidiaries have either good and marketable title in fee simple or
good and marketable leasehold title, as applicable, to all of the
Properties and good and marketable title to all other real
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described
in each of the Time of Sale Prospectus and the Prospectus or in
documents incorporated by reference therein or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its Subsidiaries;
(ii) all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances on or affecting the properties
and assets of the Company or any of the Subsidiaries that are
required to be disclosed in the Prospectus are disclosed therein or
in documents incorporated by reference therein; (iii) the
Company does not know of any violation of any municipal, state or
federal law, rule or regulation (including those pertaining to
environmental matters) concerning the Properties or any part
thereof which would have a Material Adverse Effect; (iv) each
of the Properties complies with all applicable zoning laws,
ordinances, regulations and deed restrictions or other covenants in
all material respects and, if and to the extent there is a failure
to comply, such failure does not result in a Material Adverse
Effect and will not result in a forfeiture or reversion of title;
(v) none of the Company or any Subsidiary has received from
any governmental authority any written notice of any condemnation
of or zoning change affecting the Properties or any part thereof
which could have a Material Adverse Effect, and none of the Company
or any Subsidiary knows of any such condemnation or zoning change
which is threatened and which if consummated would have a Material
Adverse Effect; and
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(vi) no lessee of any portion of any of the
Properties is in default under any of the leases governing such
Properties and there is no event which, but for the passage of time
or the giving of notice or both, would constitute a default under
any of such leases, except such defaults that would not have a
Material Adverse Effect.
(v) The Company and each of the
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they will be
engaged; and neither the Company nor any of the 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 its business assuming that such coverage
continues to be available on commercially reasonable terms at the
time.
(w) The Company and each of the
Subsidiaries has filed all material foreign, federal, state and
local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to
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 described in
or contemplated by the Time of Sale Prospectus.
(x) Except as set forth in the Time
of Sale Prospectus, the mortgages and deeds of trust encumbering
the properties and assets described in the Time of Sale Prospectus
are not convertible and neither the Company, any of its
Subsidiaries, or any person affiliated therewith holds a
participating interest therein, and such mortgages and deeds of
trust are not cross-defaulted or cross-collateralized to any
property not owned directly or indirectly by the Company or any of
its Subsidiaries.
(y) 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.
(z) The Company and the Operating
Partnership are not, and upon the issuance and sale of the Shares
as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “1940
Act”).
(aa) Except as otherwise disclosed
in the Prospectus, or except as would not, singly or in the
aggregate, have a Material Adverse Effect, (i) to
the
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best knowledge of the Company, the Company and
its Subsidiaries have been and are in compliance with applicable
Environmental Statutes; (ii) to the best knowledge of the
Company, neither the Company, any of the Subsidiaries, nor any
other owners of the property at any time or any other party has at
any time released (as such term is defined in Section 101(22)
of CERCLA (as hereinafter defined)) or otherwise disposed of
Hazardous Materials (as hereinafter defined) on, to or from the
Properties; (iii) the Company does not intend to use the
Properties or any subsequently acquired properties, other than in
compliance with applicable Environmental Statutes (as hereinafter
defined); (iv) neither the Company nor any of the 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 from which Hazardous Materials
might seep, flow or drain into such waters; (v) neither the
Company nor any of the 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 Statute with respect to the
Properties or the assets described in the Prospectus or arising out
of the conduct of the Company or its Subsidiaries;
(vi) neither the Properties nor any other land owned by the
Company or any of the Subsidiaries is included or, to the best of
the Company’s 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 knowledge, proposed for
inclusion on any similar list or inventory issued pursuant to any
other Environmental Statute or issued by any other Governmental
Authority (as hereinafter defined).
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 federal, state or local
environmental law, ordinance, rule or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. §§
9601-9675 (“CERCLA”), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. §§ 1801-1819,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
§§ 6901-K, 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. §§ 2601-2671, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
§§ 136-136y, the Clean Air Act, 42 U.S.C. §§
7401-7642, 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 each of the foregoing
(including environmental statues not specifically defined herein)
(individually, an “Environmental Statute”
and
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collectively “Environmental
Statutes”) or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and
assets described in the Prospectus (a “Governmental
Authority”).
(bb) Except as described in the
Registration Statement, there are no registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement. Except as described in the Registration
Statement, there are no registration rights or other similar rights
to have any securities otherwise registered by the Company under
the Securities Act.
(cc) No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Prospectus
has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(dd) Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty solely by the Company to the
Underwriters as to the matters covered thereby.
(ee) The Company and its
subsidiaries maintain a system of internal accounting and other
controls sufficient to provide reasonable assurances 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 GAAP and to
maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accounting for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(ff) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with GAAP. Except as disclosed in the Time
of Sale Prospectus, the Company’s internal control over
financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial
reporting. Since the date of the latest audited financial
statements included or incorporated by reference in the Time of
Sale Prospectus, 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.
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(gg) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective.
(hh) Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of
its 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 t
