Exhibit 1.1
EXECUTION COPY
Transatlantic Holdings, Inc.
$300,000,000
5.75% Senior Notes due
2015
UNDERWRITING AGREEMENT
Dated December 7, 2005
UNDERWRITING AGREEMENT
December 7, 2005
BANC OF AMERICA SECURITIES LLC
9 West 57 th Street
New York, New York
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
4 World Financial Center
North Tower
New York, New York 10080
Ladies and Gentlemen:
Transatlantic Holdings, Inc., a
Delaware corporation (the “ Company ”), confirms
its agreement, subject to the terms and conditions stated herein,
to issue and sell $300,000,000 aggregate principal amount of its
5.75% Senior Notes due 2015 (the “ Notes ”) to
Banc of America Securities LLC, Merrill Lynch & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (together, the
“ Underwriters ”), acting severally and not
jointly, the respective amounts set forth in Schedule 1 opposite
such Underwriter’s name. In connection with the
afore-mentioned issuance and sale, American International Group,
Inc. (“ AIG ”), the controlling shareholder of
the Company, has informed the Company that certain of AIG’s
subsidiaries intend to purchase an additional $450,000,000
aggregate principal amount of the Notes directly from the
Company.
The Notes will be issued pursuant to
an indenture dated December 14, 2005 between the Company and The
Bank of New York, as Trustee (the “ Trustee ”)
as supplemented by a first supplemental indenture between the
Company and The Bank of New York, as Trustee to be dated as of the
Closing Date (as defined in Section 2(a)). The indenture and
supplemental indenture are referred to herein as the “
Indenture ”. This Agreement, the Indenture and the
Notes are referred to herein collectively as the “
Operative Documents ”.
1.
Representations, Warranties and Agreements of the Company .
The Company represents, warrants to and agrees with, the
Underwriters that:
(a) The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) an automatic shelf registration
statement on Form S-3 (No. 333-130111), including the related
preliminary prospectus or prospectuses, which registration
statement became effective upon filing under Rule 462(e) of the
Securities Act of 1933, as amended (the “ Securities
Act ”, which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder), for the
registration under the Securities Act of the Notes. 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.
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(b) The Company will file
with the Commission pursuant to Rule 430B (“ Rule 430B
”) and paragraph (b) of Rule 424 (“ Rule 424(b)
”) under the Securities Act a supplement or supplements to
the form of prospectus included in such registration statement
relating to the Notes and the plan of distribution thereof. Such
registration statement, at any given time, including the amendments
thereto at such time, exhibits and any schedules thereto at such
time, and the documents otherwise deemed to be a part thereof or
included therein under the Securities Act, is hereinafter called
the “ Registration Statement ”; such prospectus
in the form in which it appears in the Registration Statement is
hereinafter called the “ Base Prospectus ”; and
such supplemented form of prospectus, in the form in which it shall
first be filed with the Commission pursuant to Rule 424(b)
(including the Base Prospectus as so supplemented), is hereinafter
called the “ Final Prospectus .” The
Registration Statement at the time it originally became effective
is hereinafter called the “ Original Registration
Statement .” Any information included in the Final
Prospectus that was omitted from the Original Registration
Statement but that is deemed to be part of and included in such
Registration Statement pursuant to Rule 430B is referred to as
“ Rule 430B Information ”). Each prospectus used
in connection with the offering of the Notes that omitted Rule 430B
Information is hereinafter called a “ Preliminary
Prospectus .” Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Ac t”, which
term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder) or otherwise deemed under the
Securities Act to be a part of or included therein; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include any document filed under the Exchange Act after the date of
this Agreement, or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference or otherwise deemed
under the Securities Act to be a part of or included therein; each
Preliminary Prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424(b) under the
Securities Act, complied when so filed in all material respects
with the Securities Act and each Preliminary Prospectus and the
Final Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval (“
EDGAR ”) system, except to the extent permitted by
Regulation S-T.
(c) (i) At the time
of filing the Original Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
and (iii) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 of
the Securities Act (“ Rule 405 ”), including not
having been and not being an “ineligible issuer” as
defined in Rule 405. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405. The Company has not received from the
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Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to the use of the
automatic shelf registration statement form.
(d) As of the date
hereof, as of the date of the Original Registration Statement, when
the Final Prospectus is first filed or transmitted for filing
pursuant to Rule 424(b) under the Securities Act, when prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of
any document incorporated by reference or otherwise deemed under
the Securities Act to be a part of or included in the Registration
Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, and each deemed
effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) under the Securities Act (i) the Registration Statement,
as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and, in the case of
Notes issued pursuant to an Indenture, such Indenture will comply
in all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the “ Trust Indenture Act ”),
as applicable, and the respective rules thereunder and (ii) neither
the Registration Statement, as amended as of any such time, nor the
Final Prospectus, as amended or supplemented as of any such time,
will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
Any offer that is a written
communication relating to the Notes made prior to the filing of the
Original Registration Statement by the Company or any person acting
on its behalf (within the meaning, for this paragraph only, of Rule
163(c) of the Securities Act) has been filed with the Commission in
accordance with the exemption provided by Rule 163 of the
Securities Act (“ Rule 163 ”) and otherwise
complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the Securities Act provided by Rule
163.
(e) As of the
Applicable Time, neither (x) the Issuer Represented General Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time (as defined below) and the Statutory Prospectus (as
defined below), all considered together (collectively, the “
General Disclosure Package ”), nor (y) any individual
Issuer Represented Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
As used in this subsection and
elsewhere in this Agreement:
“ Applicable Time
” means 12:11 pm (Eastern Standard Time) on the date of this
Agreement or such other time as agreed by the Company and the
Underwriters.
“ Statutory Prospectus
” as of any time means the prospectus relating to the Notes
that is included in the Registration Statement immediately prior to
that time, including any document incorporated by reference therein
and any preliminary or other prospectus deemed to be a part
thereof.
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“ Issuer Represented Free
Writing Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433 of the Securities Act
(“ Rule 433 ”), relating to the Notes that (i)
is required to be filed with the Commission by the Company or (ii)
is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Notes 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).
“ Issuer Represented
General Free Writing Prospectus ” means any Issuer
Represented Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being
specified in Schedule 3 hereto.
“ Issuer-Represented
Limited Use Free Writing Prospectus ” means any Issuer
Represented Free Writing Prospectus that is not an Issuer
Represented General Free Writing Prospectus.
Each Issuer Represented Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Notes or
until any earlier date that the issuer notified or notifies the
Underwriters as described in the next sentence, did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration
Statement or the Final Prospectus, including any document
incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded
or modified.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Final Prospectus or any Issuer
Represented Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter expressly for use therein, which information consists
solely of the information set forth in Schedule 2
hereto.
(f) Each document
incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Final Prospectus, when they became effective or at the time they
were or hereafter are filed with the Commission, complied and will
comply in all material respects with the Securities Act or the
Exchange Act, as applicable, and, when read together with the other
information in the General Disclosure Package and the Final
Prospectus, at the time the Registration Statement became
effective, at the earlier of the time the Final Prospectus was
issued and was first used and the date and time of the first
contract of sale of Notes in this offering and at the Closing Date
(as hereinafter defined) did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. There are no contracts or documents which
are required to be described in the Registration Statement, the
General Disclosure Package, the Final Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as
required.
(g) Each of the Company
and its operating subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its
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incorporation and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package
and the Final Prospectus. Each of the Company and its subsidiaries
is duly qualified as a foreign corporation 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 for such
jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, have a
Material Adverse Effect (as defined in Section 1(k) below). All of
the issued and outstanding capital stock of each subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
(h) The Company has all
requisite corporate power and authority to execute and deliver this
Agreement and perform its obligations hereunder; this Agreement has
been duly authorized, executed and delivered by the
Company.
(i) The Company has
all requisite corporate power and authority to execute and deliver
the Indenture and perform its obligations thereunder; the Indenture
has been duly authorized by the Company and, on the Closing Date,
the Indenture will have been duly executed and delivered by the
Company and, assuming the Indenture is the valid and legally
binding obligation of the Trustee, will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, subject
to general principles of equity and to limitations on availability
of equitable relief, including specific performance (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing (such exceptions to
enforceability is referred to herein as “ Bankruptcy
Exceptions ”); and the Indenture conforms in all material
respects to the description thereof contained in the General
Disclosure Package. The Indenture has been duly qualified under the
Trust Indenture Act.
(j) The Company has
all requisite corporate power and authority to execute, issue and
deliver the Notes and perform its obligations thereunder; the Notes
have been duly authorized by the Company; when the Notes are
executed, authenticated and issued in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement on the Closing Date (assuming due
authentication of the Notes by the Trustee), such Notes will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to the
Bankruptcy Exceptions.
(k) The execution,
delivery and performance of this Agreement and the Indenture by the
Company and the issuance and sale of the Notes and the consummation
of the transactions contemplated hereby and by such other documents
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
any of the terms or provisions of, or constitute a default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to
any
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indenture, mortgage, deed of trust,
loan or credit agreement, note, contract, franchise, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except for such
conflicts, breaches, violations or defaults as would not, either
individually or in the aggregate, have a material adverse effect on
the consolidated financial position, stockholders’ equity,
results of operations or business of the Company and its
subsidiaries taken as a whole (such effect, a “ Material
Adverse Effect ”); nor will such action result in any
violation of (i) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or any regulatory authority or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations
(except for such violations that would not result in a Material
Adverse Effect) or (ii) the provisions of the charter or bylaws of
the Company or any of its subsidiaries. As used herein, a “
Repayment Event ” means any event or condition that
gives the holder of any note, debenture or other evidence of
indebtedness of the Company or any of its subsidiaries (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 its subsidiaries.
(l) Neither
the Company nor any of its subsidiaries is (i) in violation of its
charter or by-laws or (ii) in default (or, with the giving of
notice or lapse of time, would be in default) under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries may be
bound, or to which any of the property or assets of the Company or
any of its subsidiaries is subject, except, in the case of (ii),
for such or defaults as would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) Except as have already been
obtained or may be required under the Securities Act, Trust
Indenture Act or state securities or “blue sky” laws,
no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body or any
regulatory authority is required for the execution, delivery and
performance of the Operative Documents by the Company, and the
consummation of the transactions contemplated hereby and by the
other Operative Documents.
(n) The Company is not,
and after giving effect to the offering and sale of the Notes and
the application of the proceeds thereof as described in the General
Disclosure Package and the Final Prospectus will not be, required
to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as
amended.
(o) Each of the
Company’s subsidiaries that is engaged in the business of
insurance or reinsurance (each an “ Insurance
Subsidiary ”, collectively the “ Insurance
Subsidiaries ”) is duly licensed to conduct an insurance
or a reinsurance business, as the case may be, under the insurance
statutes of each jurisdiction in which the conduct of its business
requires such licensing, except for such jurisdictions in which the
failure of the Insurance Subsidiaries to be so licensed would not,
individually or in the aggregate, result in a Material Adverse
Effect. The Insurance Subsidiaries have made all required filings
under applicable insurance statutes in each jurisdiction where such
filings are required, except for such jurisdictions in which the
failure to make such filings would not, individually or in
the
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aggregate, result in a Material
Adverse Effect. Each of the Insurance Subsidiaries has all other
necessary authorizations, approvals, orders, consents,
certificates, permits, registrations and qualifications of and from
all domestic and foreign insurance regulatory authorities necessary
to conduct their respective businesses as described in the General
Disclosure Package and the Final Prospectus, except where the
failure to have such authorizations, approvals, orders, consents,
certificates, permits, registrations or qualifications would not,
individually or in the aggregate, result in a Material Adverse
Effect, and the Company and each of its Insurance Subsidiaries has
not received any notification from any insurance regulatory
authority to the effect that any additional authorization,
approval, order, consent, certificate, permit, registration or
qualification is needed to be obtained by the Company and each of
its Insurance Subsidiaries in any case where it could be reasonably
expected that (x) the Company and each of its Insurance
Subsidiaries would be required either to obtain such additional
authorization, approval, order, consent, certificate, permit,
registration or qualification or to cease or otherwise limit the
writing of certain business and (y) the failure to obtain such
additional authorization, approval, order, consent, certificate,
permit, registration or qualification or the limiting of the
writing of such business would result in a Material Adverse Effect.
No insurance regulatory authority having jurisdiction over the
Company or any of its Insurance Subsidiaries has (i) except as
disclosed in the General Disclosure Package and the Final
Prospectus, or as would not have a Material Adverse Effect, issued
any order or decree impairing, restricting or prohibiting the
continuation of the business of the Company or any of the Insurance
Subsidiaries in all material respects as presently conducted or
(ii) except as disclosed in the General Disclosure Package and the
Final Prospectus, issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any Insurance Subsidiary
to its parent.
(p) Except as disclosed
in the General Disclosure Package and the Final Prospectus, all
reinsurance treaties and arrangements to which the Insurance
Subsidiaries are a party are in full force and effect, and none of
the Insurance Subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any obligation,
agreement, covenant or condition contained therein, except to the
extent that any such failure to be in full force and effect or any
such violation or default would not have a Material Adverse Effect.
Neither the Company nor any of the Insurance Subsidiaries has
received any notice from any of the other parties to such
agreements that such other party intends not to perform in any
material respect such agreement and none of the Company and such
Insurance Subsidiaries has any reason to believe that any of the
other parties to such agreements will be unable to perform such
agreements, except to the extent that (i) the Company or such
subsidiary has established appropriate reserves on its financial
statements or (ii) such nonperformance would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect; and neither the Company nor its Insurance
Subsidiaries has given effect to such agreements in its
underwriting results in its most recently filed statutory financial
statements unless such agreements were in material conformity with
the requirements therefor of the insurance department of the state
of domicile of each such subsidiary in effect at such time of
preparation for reinsurance ceded pursuant to such agreements or
giving effect to such agreements is otherwise permitted by
applicable accounting or regulatory standards.
(q) Except as disclosed
in the General Disclosure Package and the Final Prospectus, there
are no legal or governmental proceedings pending to which the
Company or
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any of its subsidiaries is a party
or of which any property or assets of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate,
would be reasonably likely to have a Material Adverse Effect, and
to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others, except as would not, singly or in the
aggregate, be reasonably likely to have a Material Adverse
Effect.
(r) Neither the
Company, nor to its knowledge, any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act) (“
Affiliates ”), has taken, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes; provided ,
however , that no such representation is made as to the
Underwriters or any person acting on their behalf.
(s) The
consolidated financial statements of the Company included in the
Registration Statement, the General Disclosure Package and the
Final Prospectus fairly present in all material respects the
financial condition of the Company and its consolidated
subsidiaries as of the respective dates indicated and the
consolidated results of operations and changes in
stockholders’ equity of the Company and its consolidated
subsidiaries for the periods specified, in each case in all
material respects in conformity with generally accepted accounting
principles as applied in the United States (“ GAAP
”) applied on a consistent basis throughout the periods
involved (except as indicated in the notes thereto). The summary
and selected historical financial data of the Company included in
the General Disclosure Package and the Final Prospectus fairly
present in all material respects the information shown therein and
have been compiled on a basis consistent with that of the
consolidated interim or audited financial statements of the Company
included in the General Disclosure Package and the Final
Prospectus.
(t) The statutory
annual and quarterly statements of the Insurance Subsidiaries and
the statutory balance sheets and income statements included in such
statutory annual and quarterly statements, most recently filed with
the State of New York, have been prepared in conformity with
required or permitted or prescribed statutory accounting principles
or practices applied on a consistent basis, except as may otherwise
be indicated in the notes thereto, and present fairly the financial
position of the Insurance Subsidiaries (on a statutory basis) for
the period covered thereby.
(u) Neither the
Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included in the Final
Prospectus and the General Disclosure Package any material loss or
interference with its business material to the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the General Disclosure Package and the Final
Prospectus; and, since the date as of which information is given in
the Final Prospectus and except as contemplated in the General
Disclosure Package and the Final Prospectus, there has not been (x)
any material addition, or any development involving a prospective
material addition, to the Company's consolidated reserve for losses
and loss adjustment expense, (y) any change in the authorized
capital stock of the Company or any of its subsidiaries or any
increase in the consolidated short-term or long-term debt of the
Company or (z) any Material Adverse Effect.
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(v) PriceWaterhouseCoopers LLP,
who have certified certain financial statements of the Company and
its subsidiaries, are independent accountants as required by the
Securities Act.
(w) 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 the Company 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.
(x) Since November
22, 2005, (i) no downgrading has occurred in the rating accorded
the insurer and insurance financial strength of the Company or any
Insurance Subsidiary by any “nationally recognized
statistical rating organization”, as that term is defined by
the Commission for purposes of Rule 436(g)(2) of the Securities Act
and (ii) no such rating organization has publicly announced that it
has under surveillance or review, with possible negative
implications, its rating of the insurer and insurance financial
strength of the Company or any of its Insurance
Subsidiaries.
(y) The Company and each
of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s
general or specific authorization; (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 accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the General
Disclosure Package and the Final Prospectus, 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.
(z) The Company and
its consolidated subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and
communicated to the Comp
