Exhibit 1.1
12,000,000 Shares
MERISTAR HOSPITALITY CORPORATION
Common Stock
UNDERWRITING AGREEMENT
April 23, 2004
Lehman Brothers Inc.
745 Seventh Avenue
New York, NY 10019
Ladies and Gentlemen:
MeriStar
Hospitality Corporation, a Maryland corporation (the “
Company ”), proposes, subject to the terms and
conditions stated herein, to issue and sell 12,000,000 shares (the
“ Firm Stock ”) of the Company’s Common
Stock, par value $0.01 per share (the “ Common Stock
”). In addition, the Company proposes to grant to Lehman
Brothers Inc. (the “ Underwriter ”) an option to
purchase up to an additional 1,800,000 shares of the Common Stock
on the terms and for the purposes set forth in Section 2 (the
“ Option Stock ”). The Firm Stock and the Option
Stock, if purchased, are hereinafter collectively called the
“ Stock .” This is to confirm the agreement
between the Company and the Underwriter concerning the offer, issue
and sale of the Stock by the Underwriter as of the date first
written above.
Section 1.
Representations, Warranties and Agreements of the Company .
The Company represents, warrants and agrees that:
(a) A
registration statement on Form S-3 (File No. 333-85162) with
respect to the Stock has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations of the Securities and
Exchange Commission (the “ Commission ”)
thereunder (collectively, the “ Securities Act
”), (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement (and any amendments
thereto) and all exhibits thereto have been delivered by the
Company to you. As used in this Agreement, (i) “
Registration Statement ” means the Registration
Statement on Form S-3 (File No. 333-85162), when it became
effective under the Securities Act, and as from time to time
amended or supplemented thereafter (or if any post-effective
amendment to the Registration Statement has been filed with the
Commission prior to the execution and delivery of this Agreement,
then the time that the most recent such amendment has been declared
or became effective by the Commission); (ii) “ Effective
Time ” means the date and the time as of which such
Registration Statement was declared effective by the Commission;
(iii) “ Effective Date ” means the date of the
Effective Time; (iv) " Base Prospectus ” means the
prospectus (together with all documents incorporated therein by
reference), dated May 9, 2002, and included in the
Registration Statement; (v)
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“ Supplemental
Prospectus ” means the prospectus supplement (together
with all documents incorporated therein by reference), dated
April 23, 2004, relating to the Stock; and (vi) “
Prospectus ” means the Base Prospectus and the
Supplemental Prospectus relating to the Stock, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the
rules and regulations of the Commission under the Securities Act
(the “ Rules and Regulations ”). Reference made
herein to the Registration Statement or to the Prospectus shall be
deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the date of such Registration Statement or
the Prospectus, as the case may be, and any reference to any
amendment or supplement to the Registration Statement or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “ Exchange Act ”) after the
date of such Prospectus and incorporated by reference in such
Prospectus; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the
use of the Registration Statement or the Prospectus.
(b) The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(c) The
Registration Statement, as of the Effective Date and on the date
that any post-effective amendment to the Registration Statement
becomes effective, conformed in all material respects with the
requirements of the Securities Act and Exchange Act and did 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, and the Prospectus, as of
its date and as of the applicable Delivery Date (as defined below),
conformed and will conform in all material respects with the
requirements of the Securities Act and the Exchange Act and did not
and will not contain any untrue statement of a material fact and
did not and will not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, that, the Company makes no
representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company by the Underwriter specifically for inclusion
therein.
(d) The
documents incorporated by reference in the Prospectus (the "
Incorporated Documents ”), when they became effective
or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act and
the Exchange Act, as applicable, and none of such documents
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission will conform in
all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
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(e) Each of
the Company and its Significant Subsidiaries (as defined below) has
been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization, is duly
qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, except where
the failure to be so qualified could not reasonably be expected to
have a material adverse effect on the consolidated financial
position, stockholders’ equity, results of operations,
business or prospects of the Company and its subsidiaries taken as
a whole (a “ Material Adverse Effect ”), and has
all power and authority necessary to own, lease or hold its
properties and to conduct the businesses in which it is engaged;
and none of the subsidiaries of the Company, other than MeriStar
Hospitality Operating Partnership, L.P. (“ MHOP
”), is a Significant Subsidiary. For purposes of this
Agreement, “ Significant Subsidiary ” has the
meaning set forth in Rule 1-02 of
Regulation S-X.
(f) The
Company has an authorized capitalization as set forth in the
Prospectus. All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus. All of the issued shares of capital
stock, partnership interests or limited liability membership
interests, as the case may be, of each Significant Subsidiary of
the Company have been duly and validly authorized and issued and
(except for partnership interests of general partners and except to
the extent the limited liability company agreements or partnership
agreements governing the relevant companies provide otherwise) are
fully paid and non-assessable and (except for partnership interests
in MHOP owned by third parties) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims (collectively, “ Liens ).
(g) Except as
disclosed in the Prospectus, (i) there are no outstanding
securities convertible into or exchangeable for, or warrants,
options or rights issued by the Company to purchase, any shares of
the capital stock of the Company, (ii) there are no statutory,
contractual, preemptive or other rights to subscribe for or to
purchase any Common Stock and (iii) there are no restrictions
upon transfer of the Common Stock pursuant to the Company’s
charter or bylaws.
(h) The
shares of the Stock to be issued and sold by the Company to the
Underwriter hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor in accordance
with this Agreement, will be duly and validly issued, fully paid
and non-assessable; and the Stock will conform in all material
respects to the description thereof contained in the Prospectus.
Upon payment for and delivery of the Stock to be sold by the
Company pursuant to this Agreement, the Underwriter will acquire
good and valid title to such Stock, in each case free and clear of
all liens, encumbrances, equities, preemptive rights, subscription
rights, other rights to purchase, voting or transfer restrictions
(except as described in the Prospectus) and other
claims.
(i) This
Agreement has been duly authorized, executed and delivered by the
Company.
(j) The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Stock, the compliance by
the Company with all the provisions hereof and the consummation of
the transactions contemplated hereby (the “
Transactions ”) will not (i)
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conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound
or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or any
limited partnership agreement or other constituent document of the
Company or any of its Significant Subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties or assets or
(iii) result in the imposition or creation of (or the
obligation to create or impose) a Lien under any 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 or their
respective properties or assets is bound.
(k) Except
(i) with respect to the registration of the Stock under the
Securities Act and the Exchange Act, (ii) as required by the
state securities or “blue sky” laws and (iii) for
such consents, approvals, authorizations, orders, filings or
registrations which have been obtained or made, no consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the issuance
and sale of the Stock, or the consummation of the Transactions by
the Company.
(l) Except as
described in the Prospectus, the Company has not sold or issued any
shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employment contracts, benefit
plans, qualified stock options plans or other similar arrangement
with or for the benefit of any one or more employees, officers,
directors or consultants, or pursuant to a dividend reinvestment or
stock purchase plan, or pursuant to outstanding options,
convertible securities, rights or warrants.
(m) Neither
the Company nor any of its Significant Subsidiaries has sustained,
since the date of the latest financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since
such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its Significant
Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus.
(n) The
financial statements (including the related notes and supporting
schedules) filed as part of the Registration Statement or included
or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition, the results of
operations, cash flows and changes in the financial position of the
Company and its subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved;
the
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supporting schedules, if any,
included or incorporated by reference in the Prospectus present
fairly in accordance with generally accepted accounting principles
the information required to be stated therein; and the other
financial and statistical information and data set forth in the
Prospectus (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company.
(o) KPMG LLP
(the “ Accountants ”), who have certified the
financial statements of the Company, whose report is incorporated
by reference in the Prospectus, who have delivered the initial
letter referred to in Section 7(e) hereof and who will deliver the
bring-down comfort letter referred to in Section 7(f) hereof, were
independent public accountants as required by the Securities Act
and the Rules and Regulations during the periods covered by the
financial statements on which they reported.
(p) There are
no legal or governmental proceedings pending to which the Company
or any of its Significant Subsidiaries is a party or of which any
property or assets of the Company or any of its Significant
Subsidiaries is subject which, could reasonably be expected to have
a Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others that are required
to be disclosed in the Prospectus that are not so
disclosed.
(q) No
relationship, direct or indirect, exists between or among the
Company or MHOP on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or MHOP on the
other hand, which is required to be set forth in the Prospectus
which is not so set forth.
(r) Except
for existing agreements with holders of limited partnership units
in MHOP, 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
Securities Act with respect to any securities of the Company owned,
directly or indirectly, or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(s) There are
no contracts, agreements or other documents which are required to
be set forth in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act which have not been
set forth in the Prospectus or filed as exhibits to the
Registration Statement.
(t) Since the
date as of which information is given in the Prospectus and except
as otherwise disclosed in the Prospectus, the Company has not
(i) issued or granted any securities, including any sales
pursuant to Rule 144A, or Regulation D or S of, the
Securities Act, other than in connection with any employment
contract, benefit plan, qualified stock options plan or other
similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, or in connection
with a dividend reinvestment or stock purchase plan, or in
connection with outstanding options, rights, convertible securities
or warrants, (ii) incurred any liability or obligation, direct
or contingent, other than liabilities and obligations which
were
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incurred in the ordinary course
of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any
dividend on any of its capital stock.
(u) Neither
the Company nor any of its Significant Subsidiaries is or, as of
the applicable Delivery Date after giving effect to the issuance of
the Stock and the application of the net proceeds therefrom as set
forth in the Prospectus, will be an “investment
company” within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “ Investment
Company Act ”).
(v) Neither
the Company, nor to its knowledge, any of its Affiliates (as
defined in Rule 501(b) of Regulation D, an “
Affiliate ”), 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 the Stock to facilitate the sale or
resale of such securities as prohibited by Regulation M under
the Securities Act.
(w) The
Company (including American General Hospitality Corporation as
predecessor to the Company for all periods through the date of the
merger of CapStar Hotel Company into American General Hospitality
Corporation but excluding CapStar Hotel Company for any periods on
or prior to the date of such merger (each, a “ Predecessor
Entity ”)) was organized and conducted its business and
operations for each of its taxable years ended December 31,
1996, December 31, 1997, December 31, 1998, December 31,
1999, December 31, 2000, December 31, 2001,
December 31, 2002, and December 31, 2003 in conformity
with the requirements for qualification as a real estate investment
trust (a “ REIT ”) under the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (collectively, the “ Internal
Revenue Code ”), and commencing with its taxable year
ending December 31, 2004, the Company is organized and has
conducted its business and operations in conformity with the
requirements for qualification as a REIT under the Internal Revenue
Code and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a REIT under the
Internal Revenue Code.
(x) The
Company, each of its subsidiaries and each Predecessor Entity has
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, and no tax deficiency has been determined adversely to
the Company, any of its subsidiaries or any Predecessor Entity for
which the Company would be liable which has had (nor does the
Company have any knowledge of) any tax deficiency which would
reasonably be expected to have a Material Adverse Effect; the
amounts currently set up as provisions for taxes or otherwise by
the Company and its subsidiaries on their books and records are
sufficient for the payment of all their unpaid federal, foreign,
state, county and local taxes accrued through the dates as of which
they speak, and for which the Company and its subsidiaries may be
liable in their own right or as a transferee of the assets of, or
as successor to any other corporation, association, partnership,
joint venture or other entity.
(y) The
Company and each of its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to
all personal property owned by them, free and clear of all liens,
encumbrances and defects, except for property level financings and
such as are set forth in the Prospectus or as do not materially
affect the value of such property
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and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and all assets held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries.
(z) Except as
set forth in the Prospectus, the Company and each of its
subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties
from insurers of recognized financial responsibility and as is
customary for companies engaged in similar businesses in similar
industries. Except as set forth in the Prospectus, neither the
Company nor any of its subsidiaries (i) has received notice
from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in
order to continue such insurance or (ii) has any reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers at a cost that would not reasonably be
expected to have a Material Adverse Effect.
(aa) Each of
the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other
approvals (each, an " Authorization ”) of, and has
made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under
any applicable environmental law, ordinance, rule, regulation,
order, judgment, decree or permit, as are necessary to own, lease,
license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization
or to make any such filing or notice would not reasonably be
expected to have a Material Adverse Effect; each such Authorization
is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no
event has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome
to the Company or any of its subsidiaries, except where such
failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not reasonably be expected to have a
Material Adverse Effect.
(bb) Except
as set forth in the Prospectus, no labor disturbance by the
employees of the Company exists or, to the knowledge of the
Company, is imminent, which would be reasonably be expected to have
a Material Adverse Effect.
(cc) The
Company (i) makes and keeps accurate books and records 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 financial statements and to maintain
accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s
authorization
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and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(dd) Neither
the Company nor any of its Significant Subsidiaries (i) is in
violation of its charter or by-laws or limited partnership
agreement or other constituent document, (ii) is in default in
any material respect, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
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, except where it would not reasonably be expected to
have a Material Adverse Effect, or (iii) is in violation in
any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its properties or assets
are subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its properties or assets or to
the conduct of its business, except where it would not reasonably
be expected to have a Material Adverse Effect.
(ee) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ff) Except
as set forth in the Prospectus, there has been no storage,
disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any Predecessor
Entity for which the Company would be liable) at, upon or from any
of the property now or previously owned or leased by the Company or
its subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not
reasonably be expected to have a Material Adverse Effect; there has
been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not have or would not reasonably be expected to have a Material
Adverse Effect; and the terms “hazardous wastes”,
“toxic wastes”, “hazardous substances” and
“medical wastes” shall have the meanings specified in
any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
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(gg) 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 the Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with the
transactions contemplated hereby.
(hh) The
statistical and market-related data included in the Prospectus and
the Registration Statement are based on or derived from sources
which the Company believes to be reliable and accurate.
(ii) The
statements set forth in the Prospectus under the caption
“Description of Common Stock of MeriStar” insofar as
such statements purport to summarize the provisions of the
documents or agreements referred to therein, matters of law or
legal conclusions or federal statutes, laws or regulations, in all
material respects, are accurate and fairly present the information
required to be shown.
(jj) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), which (i) are designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s principal
executive officer and its principal financial officer by others
within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being
prepared; (ii) have been evaluated for effectiveness as of the
end of the period covered by the Company’s most recent annual
or quarterly report filed with the Commission; and (iii) were,
as of December 31, 2003, effective in all material respects to
perform the functions for which they were established.
(kk) Based on
the Company’s most recent evaluation of its internal control
over financial reporting, the Company is not aware of (i) any
significant deficiency or material weakness in the design or
operation of internal control over financial reporting which is
reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information; or
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal control over financial
reporting.
(ll) Since
the date of the most recent evaluation of such internal control
over financial reporting, 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.
Section 2. Purchase of
the Stock by the Underwriter . On the basis of the
representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell
the Firm Stock to the Underwriter and the Underwriter agrees to
purchase the number of shares of the Firm Stock set forth opposite
the Underwriter’s name in Schedule 1 hereto.
In
addition, the Company grants to the Underwriter an option to
purchase the Option Stock. Such option is granted for the purpose
of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof.
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The
price to the Underwriter of both the Firm Stock and any Option
Stock shall be $6.07 per share.
The
Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date, except upon payment for all the
Stock to be purchased on such Delivery Date as provided
herein.
Section 3. Offering of
Stock by the Underwriter . The Underwriter proposes to offer
the Firm Stock for sale upon the terms and conditions set forth in
the Prospectus.
Section 4.
Delivery of and Payment for the Stock . Delivery of and
payment for the Firm Stock shall be made at the offices of Simpson
Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY
10017, at 10:00 A.M., New York City time, on the fourth full
business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the
Underwriter and the Company. This date and time are sometimes
referred to as the “ First Delivery Date .” On
the First Delivery Date, the Company shall deliver or cause to be
delivered certificates representing the Firm Stock to the
Underwriter for its account against payment to or upon the order of
the Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriter hereunder. Upon
delivery, the Firm Stock shall be registered in such names and in
such denominations as the Underwriter shall request in writing not
less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for inspection
by the Underwriter in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the First Delivery
Date.
The
option granted in Section 2 will expire at the close of
business on the 30th day after the date of this Agreement and may
be exercised in whole or in part from time to time by written
notice being given to the Company by the Underwriter. Such notice
shall set forth the aggregate number of shares of Option Stock as
to which the option is being exercised, the names in which the
shares of Option Stock are to be registered, the denominations in
which the shares of Option Stock are to be issued and the date and
time, as determined by the Underwriter, when the shares of Option
Stock are to be delivered; provided, however , that this
date and time shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which the
option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are
sometimes referred to as a “ Second Delivery Date
” and the First Delivery Date and any Second Delivery Date
are sometimes each referred to as a “ Delivery Date
”.
Delivery of and
payment for the Option Stock shall be made at the place specified
in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between
the Underwriter and the Company) at 10:00 A.M., New York City
time, on such Second Delivery Date. On such Second Delivery Date,
the Company shall deliver or cause to be delivered the certificates
representing the Option Stock to the Underwriter for its account
against payment to or upon the order of the Company of the purchase
price by wire transfer in immediately available funds. Time shall
be of the essence, and delivery at the
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time and place specified pursuant
to this Agreement is a further condition of the obligation of the
Underwriter hereunder. Upon delivery, the Option Stock shall be
registered in such names and in such denominations as the
Underwriter shall request in the aforesaid written notice of
exercise of the option. For the purpose of expediting the checking
and packaging of the certificates for the Option Stock, the Company
shall make the certificates representing the Option Stock available
for inspection by the Underwriter in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to
such Second Delivery Date.
Section 5. Further
Agreements of the Company . The Company covenants and
agrees:
(a) To
prepare the Prospectus in a form approved by the Underwriter and to
file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission’s close of business on the
second business day following the execution and delivery of this
Agreement; prior to making any amendment or supplement to the
Registration Statement or to the Prospectus other than by filing
documents under the Exchange Act which are incorporated by
reference therein, to furnish a copy thereof to the Underwriter and
counsel for the Underwriter and not to effect any such amendment or
supplement to which the Underwriter shall reasonably object by
notice to the Company after a reasonable period to review, which
shall not in any case be longer than three business days after
receipt of such copy; prior to the termination of the offering of
the Stock as determined by the Underwriter, not to file any
document that would be deemed to be incorporated by reference in
the final Prospectus pursuant to Item 12 of Form S-3 without
delivering to the Underwriter a copy of the document proposed to be
so filed, such delivery to be made at least twenty-four hours prior
to such filing, and to consult with the Underwriter as to any
comments which the Underwriter makes in a timely manner with
respect to the document so delivered; to advise the Underwriter,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriter with
copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Stock; to advise the
Underwriter, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Prospectus, of the
suspension of the qualification of the Stock for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To
furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith;
(c) To
deliver promptly to the Underwriter such number of the following
documents as the Underwriter shall reasonably request:
(i) conformed copies of the Registration Statement
12
as originally filed with the
Commission and each amendment thereto (in each case, excluding
exhibits), (ii) the Prospectus and any amended or supplemented
Prospectus and (iii) any documents incorporated by reference
in the Prospectus (excluding exhibits thereto) and, if the delivery
of a prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made wh
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