Exhibit 1.1
Spirit Finance
Corporation
Underwriting Agreement
New York, New York
December 7, 2006
Wachovia Capital Markets, LLC
As Representative of the several Underwriters
375 Park Avenue
New York, NY 10152
Ladies and Gentlemen:
Spirit Finance Corporation, a
corporation organized under the laws of Maryland (the “
Company ”), proposes to sell to the several
underwriters named in Schedule II hereto (the “
Underwriters ”), for whom you (the “
Representative ”) are acting as representative, the
number of shares of Common Stock, $0.01 par value per share
(“ Common Stock ”), of the Company set forth in
Schedule I hereto (said shares to be issued and sold by the
Company being hereinafter called the “ Underwritten
Securities ”). The Company also proposes to grant
to the Underwriters an option to purchase up to the number of
additional shares of Common Stock set forth in Schedule I
hereto to cover over-allotments (the “ Option
Securities ”; the Option Securities, together with the
Underwritten Securities, being hereinafter called the “
Securities ”). To the extent there are no
additional Underwriters listed on Schedule II other
than you, the term Representative as used herein shall mean you, as
Underwriter, and the term Underwriters shall mean
Underwriter. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final 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 Exchange
Act on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. Certain terms used
herein are defined in Section 19 hereof.
1.
Representations and Warranties . The Company
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1 .
(a)
The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed on January 3, 2006 with the
Commission an automatic shelf registration statement, as defined in
Rule 405, the file number of which is set forth in Schedule
I hereto on Form S-3, including a related Basic
Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became
effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more Preliminary Final
Prospectuses, each of which has previously been furnished to
you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with
Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and the rules
thereunder, and, except to the extent the Representative shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b)
On the Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on
any date on which Option Securities are purchased, if such date is
not the Closing Date (a “ settlement date ”),
the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration
Statement did not 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;
and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any settlement date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representative specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed
that
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the only such
information furnished by or on behalf of any Underwriters consists
of the information described as such in Section 8(b)
hereof.
(c)
The Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities set
forth on Schedule I hereto, when taken together as a whole,
and each electronic roadshow when taken together with the
Disclosure Package, the price to the public, the number of
Underwritten Securities and the number of Option Securities set
forth on Schedule I hereto, does not contain any untrue
statement of a material fact or omit 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.
The preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8(b) hereof.
(d)
(i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Securities in reliance on the exemption in
Rule 163, and (iv) at the Execution Time (with such date being used
as the determination date for purposes of this clause (iv)), the
Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Securities
within the time required by Rule 456(b)(1) without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(e)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(f)
Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified.
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The foregoing
sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8(b) hereof.
(g)
Each of the Company and its subsidiaries has been duly incorporated
or organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the
jurisdiction in which it is chartered or organized with full
corporate or limited liability company power and authority to own
or lease, as the case may be, and to operate its properties and
conduct its business as described in the Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification except as would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(h)
All the outstanding shares of capital stock of the Company and each
subsidiary that is a corporation have been duly and validly
authorized and issued and are fully paid and nonassessable, and all
of the outstanding equity interests of any subsidiary that is not a
corporation have been duly and validly authorized and validly
issued, and, except as otherwise set forth in the Disclosure
Package and the Final Prospectus, all outstanding equity interests
of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances, other than the equity interests of Spirit Master
Funding, LLC and Spirit Master Funding II, LLC, which have been
pledged to Citigroup Global Markets Realty Corp.
(i)
The Company’s authorized equity capitalization is as set
forth in the Disclosure Package and the Final Prospectus; the
capital stock of the Company conforms in all material respects to
the description thereof contained in the Final Prospectus; the
outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
agreement (this “ Agreement ”), will be fully
paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading, on the New York Stock Exchange
subject to official notice of issuance; the certificates for the
Securities are in valid form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set
forth in the Final Prospectus, no options, warrants or other rights
to purchase,
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agreements or
other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding.
(j)
There is no franchise, contract or other document of a character
required to be described in each of the Registration Statement, the
Preliminary Final Prospectus or the Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Preliminary Final Prospectus
and the Final Prospectus under the headings “Material United
States Federal Income Tax Considerations,” “Description
of our Capital Stock,” and “ERISA
Considerations,” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(k)
This Agreement has been duly authorized, executed and delivered by
the Company.
(l)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Disclosure Package and Final Prospectus, will
not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(m)
No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein, in the Disclosure Package and in the Final
Prospectus.
(n)
Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, (i) the charter or bylaws of the
Company or any of its subsidiaries, (ii) except as would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject, including, without limitation, that certain
Master Repurchase Agreement, among Citigroup Global Markets Realty
Corp., Spirit Finance Acquisitions, LLC, Spirit SPE Warehouse
Funding, LLC, and the Company, dated as of October 13,
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2006, or
(iii) except as would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its or their properties.
(o)
No holders of securities of the Company have rights to the
registration of such securities under the Registration
Statement.
(p)
The consolidated historical financial statements of the Company and
its consolidated subsidiaries incorporated in the Preliminary Final
Prospectus, the Final Prospectus and the Registration Statement,
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein).
(q)
No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(r)
Except as otherwise disclosed in the Disclosure Package and the
Final Prospectus, the Company and each of its subsidiaries has good
and martketable title to all the properties referred to in the
Disclosure Package and the Final Prospectus, in each case free and
clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do
not materially interfere with the use made or proposed to be made
of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under
lease by the Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material
and
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do not materially
interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the
Company or such subsidiary.
(s)
Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter, bylaws or limited
liability company agreement, as applicable, (ii) except as
would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, including,
without limitation, that certain Master Repurchase Agreement, among
Citigroup Global Markets Realty Corp., Spirit Finance Acquisitions,
LLC, Spirit SPE Warehouse Funding, LLC, and the Company, dated as
of October 13, 2006, or (iii) except as would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as
applicable.
(t)
Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements incorporated by reference in the Registration
Statement, the Preliminary Final Prospectus and the Final
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(u)
There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale
by the Company of the Securities.
(v)
The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business),
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of
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any supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(w)
No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent, and
the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
that could have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(x)
The Company and each of its subsidiaries are 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 are engaged; all policies of insurance insuring the
Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects;
and there are no claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of
rights clause; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and neither
the Company nor any such subsidiary 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 as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(y)
No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any
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loans or advances
to such subsidiary from the Company or from transferring any of
such subsidiary’s property or assets to the Company or any
other subsidiary of the Company, except as described in or
contemplated by the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(z)
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and neither the
Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, authorization or permit which, individually
or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(aa)
The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; (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 and
(v) management is made aware of
all material transactions concerning the Company or its
properties . The Company and its subsidiaries’
internal control over financial reporting is effective and the
Company and its subsidiaries are not aware of any material weakness
in their internal control over financial reporting.
(bb)
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.
(cc)
The Company and its subsidiaries maintain “disclosure
controls and procedures” (as such term is defined in Rule
13a-15(e) of the Exchange Act) and such disclosure controls
and procedures are effective.
(dd)
The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause
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or result in,
under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(ee)
The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability under any Environmental Law, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto). Except as set forth in the Disclosure
Package and the Final Prospectus, neither the Company nor any of
its subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(ff)
The Company has reasonably concluded that the costs and liabilities
associated with Environmental Law compliance would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto).
(gg)
Commencing with the Company’s taxable year ended December 31,
2003, the Company has been organized and has operated in conformity
with the requirements for qualification and taxation as a real
estate investment trust (a “ REIT ”) pursuant to
Sections 856 through 860 of the Code and the Company’s
current and proposed method of operation will enable it to continue
to meet the requirements for qualification and taxation as a REIT
under the Code.
(hh)
The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (“
ERISA ”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has been
established or maintained by the Company and/or one or more of
its
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subsidiaries, and
the trust forming part of each such plan which is intended to be
qualified under Section 401 of the Code is so qualified;
no “reportable
event” (as defined in ERISA, other than a “reportable
event” as to which the provision of 30 days’ notice to
the Pension Benefit Guaranty Corporation is waived under applicable
regulations) has occurred or is reasonably expected to occur with
respect to any “pension plan” (as defined in ERISA)
established or maintained by the Company or any of its
subsidiaries; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA;
neither the Company nor any of its subsidiaries maintains or is
required to contribute to a “welfare plan” (as defined
in Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602 of
ERISA)); each pension plan and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently
applicable provisions of ERISA; neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur
any withdrawal liability under Section 4201 of ERISA, any liability
under Section 4062, 4063, or 4064 of ERISA, or any other liability
under Title IV of ERISA; neither the Company nor any of its subsidiaries is a
member of a “controlled group of corporations” with or
under “common control” (as defined in Section 414(b) or
(c) of the Code) with any other Person, or than with the Company or
any of its subsidiaries .
(ii)
There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities
as such, to comply with any material provision of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “ Sarbanes Oxley Act
”), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(jj)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate 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 (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, its subsidiaries and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
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(kk)
To the extent the Company or its subsidiaries are subject to such
laws, the operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(ll)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); and the Company will not knowingly directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(mm)
The Company and its subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the “ Intellectual Property ”)
necessary for the conduct of the Company’s business as now
conducted or as proposed in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) to be
conducted.
(nn)
Except as provided herein, there is no broker, finder or other
party that is entitled to receive from the Company any brokerage or
finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(oo)
The Disclosure Package and the Final Prospectus contain complete and accurate
summaries in all material
respects of all material contracts, agreements, instruments
and other documents of the Company and its subsidiaries that are
required to be described in the Registration Statement or the Final
Prospectus; the copies of any such contracts, agreements, instruments and other
documents (including all amendments or waivers relating to any of the foregoing)
have been filed by the Company with the
Commission.
12
(pp)
At no time have “benefit plan investors,” as defined
in U.S. Department of Labor Regulation 29 C.F.R. Section
2510.3-101, held 25% or more of the value of any class of
equity interests in the Company.
(qq)
Any certificate signed by any officer of the Company and delivered
to the Representative or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2.
Purchase and Sale .
(a)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the number of
Underwritten Securities set forth opposite such Underwriter’s
name in Schedule II hereto.
(b)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally
and not jointly, up to the number of Option Securities set forth in
Schedule I hereto at the same purchase price per share as
the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said
option may be exercised in whole or in part at any time on or
before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representative to the Company
setting forth the number of Option Securities as to which the
several Underwriters are exercising the option and the settlement
date. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of
Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
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3.
Delivery and Payment . Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been
exercised on or before the third Business Day prior to the Closing
Date) shall
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