Exhibit
1.1
KANSAS CITY SOUTHERN
1,494,469 Shares of Common Stock
Underwriting Agreement
December 4, 2006
Morgan Stanley & Co. Incorporated
c/o Morgan Stanley & Co. Incorporated 1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Grupo TMM, S.A., a sociedad anonima organized under the laws of the
United
Mexican States and a
stockholder
(the "Selling
Stockholder")
of Kansas City
Southern, a Delaware
corporation (the
"Company"),
proposes to sell to
Morgan
Stanley & Co. Incorporated (the "Underwriter"), an aggregate of
1,494,469 shares
(the "Shares") of common stock, par value $0.01 per share (the
"Stock"), of the
Company. The Stock, including the Shares, will have attached
thereto rights (the
"Rights"). The
Rights are to be
issued pursuant
to a Rights
Agreement (the
"Rights Agreement")
dated as of September
29, 2005 between the Company and UMB
Bank, n.a., as Rights Agent.
The
Company and the Selling Stockholder hereby confirm their agreement
with
the Underwriter concerning the purchase and sale of the Shares as
follows:
The
Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended, and
the rules and
regulations
of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-1 (File No.:
333-138831)
which contains a form
of prospectus to be
used in connection
with the public
offering and sale of the Shares. Such registration statement, as amended at the
time it became effective, including the information, if any,
deemed pursuant to
Rule 430A under the Securities Act to be a part of the registration
statement at
the time of its effectiveness (the "Rule 430 Information") is
referred to herein
as the "Registration Statement"; and as used herein the term
"Prospectus" means
the prospectus in the form first used to confirm sales of Shares
(or in the form
first made available
to the Underwriter by the Company to meet requests of
purchasers pursuant
to Rule 173 under the Securities Act) and the term
"Preliminary
Prospectus" means any
preliminary
form of the
Prospectus.
Any
reference in this
Agreement to the
Registration
Statement,
any Preliminary
Prospectus, the Time
of Sale Information
(as defined herein) or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant
to Item 12 of Form S-1
under the Securities Act, and any
reference to
"amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus, Time of Sale
Information (as
defined below) or the
Prospectus
shall be deemed to
refer to and include
any
documents filed by the
Company under the
Securities
Exchange Act of 1934,
as
amended, and
the rules and regulations of the Commission thereunder
(collectively, the
"Exchange Act") that are deemed to be incorporated by
reference therein.
Capitalized terms
<PAGE>
used but not defined
herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
The
Company has prepared the following information (collectively with the
information referred
to in the next
succeeding
sentence, the "Time of Sale
Information"): a
Preliminary Prospectus
dated December 1, 2006, as amended and
supplemented, as of
the Applicable
Time (as defined below), including all
information
incorporated by reference therein, and each free-writing
prospectus
(as defined pursuant to Rule 405 under the Securities Act) and
other information
listed on Annex C hereto. If, subsequent to the date of this Agreement, the
Company and the Underwriter have determined that such
information
included an
untrue statement
of material fact or omitted a statement
of material fact
necessary to make the
information
therein not
misleading
and have agreed to
provide an opportunity to purchasers to terminate their old contracts and enter
into new contracts, then "Time of Sale Information" will refer to the
information available to purchasers at the time of entry into the
first such new
contract. "Applicable
Time" means 5.30 P.M., New York City time, on the date of
this Agreement.
Purchase of the Shares
by the Underwriter.
(a) The Selling Stockholder
agrees to sell the Shares to the Underwriter as provided in this
Agreement, and
the Underwriter, on the basis of the representations, warranties and agreements
set forth herein
and subject to the conditions set forth herein, agrees,
severally and not
jointly, to purchase from the Selling Stockholder at a
purchase price per share of $25.7839 (the "Purchase Price") the
number of Shares
(to be adjusted
by you so as to
eliminate fractional shares) as set forth
opposite its name in Schedule I hereto.
The Selling
Stockholder
understands that the Underwriter intends to
make
a public offering
of any or all Shares
on the terms set forth in the
Prospectus as soon
after the
effectiveness of this
Agreement as in the
judgment of
the Underwriter is advisable. The Selling Stockholder
acknowledges and
agrees that the
Underwriter may offer and sell Shares to
or
through any affiliate of an Underwriter and that any such affiliate
may
offer and sell Shares purchased by it to or through the
Underwriter.
Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Selling
Stockholder at the
offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, N.Y.
10022 at 9.00 A.M. New York City time on December 4, 2006, or at
such other
time
or place on the same or such other date, not later than the fifth
business day thereafter, as the Underwriter and the Selling
Stockholder may
agree upon in writing. The time and date of such payment for the
Shares are
referred to herein as the "Closing Date".
Payment for the Shares to be purchased on the Closing Date shall be made
against delivery to
the Underwriter
for the account of the
Underwriter of the
Shares to be purchased on such date in definitive form registered in such names
and in such
denominations as the Underwriter shall request in writing not
later
than two full business
days prior to the
Closing Date with any transfer taxes
payable in
connection
with the sale of the
Shares duly paid by the Selling
Stockholder. The
certificates
for the Shares will be made available for
inspection and
<PAGE>
packaging by the Underwriter at the office of Morgan Stanley &
Co. Incorporated
set forth above not later than 4.00 P.M., New York City time, on the business
day prior to the Closing Date.
Each of the Company
and the Selling Stockholder acknowledges and
agrees that the
Underwriter is acting
solely in the capacity
of an arm's
length contractual
counterparty to the Selling Stockholder with respect to
the
offering of Shares
contemplated hereby
(including in
connection with
determining the terms of the offering) and not as a financial
advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholder or any
other person.
Additionally, the
Underwriter is not
advising the Company,
the
Selling Stockholder or any other person as to any legal, tax,
investment, accounting
or regulatory matters in any jurisdiction. The
Company and the Selling Stockholder shall consult with their own
advisors
concerning such
matters and shall be responsible for making their own
independent
investigation and
appraisal of the transactions contemplated
hereby, and the
Underwriter shall have
no responsibility or
liability to
the
Company or the Selling Stockholder with respect thereto.
Any review by
the
Underwriter of the Company, the transactions contemplated hereby or
other matters relating
to such transactions
will be performed
solely for
the
benefit of the Underwriter and shall not be on behalf of the
Company or
the
Selling Stockholder.
Representations and
Warranties of the Company. The Company represents and
warrants to the Underwriter and the Selling Stockholder that:
Preliminary
Prospectus. No order
preventing or suspending the use of
any
Preliminary
Prospectus
has been issued by the
Commission,
and each
Preliminary
Prospectus, at the
time of filing
thereof, complied
in all
material respects with
the Securities
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 in order to make the statements
therein, in
the
light of the circumstances under which they were made, not
misleading;
provided that the Company makes no representation and warranty with
respect
to
any statements or omissions made in reliance upon and in conformity
with
information
relating to
the Underwriter or the Selling Stockholder
furnished to the
Company in writing by
the Underwriter
and the Selling
Stockholder, respectively, expressly for use in any Preliminary
Prospectus.
Time of Sale Information. The Time of Sale Information, at the Time
of
Sale
did not, and at the Closing Date will not, contain 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 that the
Company makes
no
representation and
warranty with respect to any statements or omissions
made
in reliance upon and in conformity with information relating to the
Underwriter or the Selling Stockholder furnished to the Company in
writing
by the Underwriter or
the Selling Stockholder, respectively, expressly for
use
in such Time of Sale Information. No statement of material fact
included in the
Prospectus
has been omitted from the Time of Sale
Information and no
statement of material fact included in the Time of Sale
Information that is
required to be
included in the
Prospectus
has been
omitted therefrom.
<PAGE>
Free Writing Prospectus. Other than the Preliminary Prospectus and
the
Prospectus, the
Company (including its agents and representatives, other
than
the Underwriter in its capacity as such) has not made, used,
prepared,
authorized, approved
or referred to and will not prepare, make, use,
authorize, approve or
refer to any written
communication
(as defined in
Rule
405 under the
Securities Act) that
constitutes
an offer to sell
or
solicitation of an offer to buy the Shares (each such communication by the
Company or its agents
and representatives (other than a communication
referred to in clause (i) below) a "Free Writing Prospectus") other than
(i)
any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the
Securities Act or Rule
134 under the Securities Act or
(ii)
the documents listed on Annex D hereto and other written
communications approved in writing in advance by the Underwriter.
Each such
Free
Writing Prospectus complied in all material respects with the
Securities Act, has
been filed in accordance with the Securities Act (to
the
extent required
thereby) and, when taken together with the Preliminary
Prospectus
accompanying, or
delivered prior to delivery of, such Free
Writing Prospectus,
did not, and at the Closing Date will not, contain 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
that the
Company makes no representation and warranty with respect to any
statements
or
omissions made in reliance upon and in conformity with information
relating to the
Underwriter
or the Selling
Stockholder
furnished to the
Company in
writing by the Underwriter or the Selling Stockholder,
respectively, expressly for use in any Free Writing Prospectus.
Registration Statement
and Prospectus. No order suspending the
effectiveness of
the Registration Statement has been issued by the
Commission and no
proceeding for that purpose or pursuant to Section 8A of
the
Securities Act against
the Company or related to the offering has been
initiated or threatened by the Commission; as of the applicable effective
date
of the Registration Statement and any amendment thereto, the
Registration Statement
complied and will
comply in all material
respects
with
the Securities Act, and did not and will not
contain any untrue
statement of a material fact or omit to state a material
fact required to
be
stated therein or necessary in order to make the statements
therein not
misleading; and as of
the date of the
Prospectus
and any amendment or
supplement thereto
and as of the
Closing Date the Prospectus will not
contain any untrue statement of a material fact or omit to state a
material
fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Company makes no
representation and
warranty with respect to any statements or omissions made in
reliance upon
and
in conformity
with information relating to the Underwriter or the
Selling Stockholder
furnished to the Company in writing by the Underwriter
and
the Selling Stockholder, respectively, expressly for use in the
Registration Statement
and the Prospectus and
any amendment or supplement
thereto.
Incorporated Documents. The documents incorporated by reference in
the
Prospectus, when they
become effective or
were filed with the Commission,
as
the case may be, conformed in all material respects to the requirements
of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained
any untrue
statement
<PAGE>
of a
material fact or omitted to state a
material fact required to be
stated therein or necessary to make the statements therein, in the
light of
the
circumstances
under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus,
when
such documents become
effective or are filed with the Commission, as
the
case may be, will conform in all material respects to the requirements
of
the Act or the
Exchange Act, as
applicable,
and will not contain
any
untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein,
in
the light of the circumstances under which they were made, not
misleading.
Financial Statements.
The historical financial statements and the
related notes
thereto of the
Company and its
consolidated
subsidiaries
(including Grupo
KCSM, S.A. de C.V. ("Grupo KCSM")) included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the
Prospectus
comply in all material
respects with the
applicable
requirements of the
Securities
Act and the Exchange
Act, as
applicable, and
present fairly the
financial position of the entities
purported to be covered thereby at the respective
dates indicated and
the
results of their operations and their cash flows for the respective
periods
specified; such
financial statements have been prepared in conformity with
generally accepted
accounting
principles
applied on a
consistent basis
throughout the
periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement, the
Time
of Sale Information,
and the other financial information included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting
records
of
the Company and its
subsidiaries and
presents fairly the
information
shown thereby;
and the pro forma
financial information and the related
notes thereto included
or incorporated
by reference in the
Registration
Statement, the
Time of Sale
Information
and the Prospectus have been
prepared in accordance
with the applicable
requirements of the Securities
Act
and the Exchange Act, as applicable, and the assumptions underlying
such
pro forma financial
information
are reasonable and are
set forth in
the
Registration
Statement,
the Time of Sale Information and the
Prospectus. No other
financial statements,
including pro forma
financial
statements, are
required to be included in the Registration Statement, the
documents incorporated
by reference therein,
the Time of Sale Information
and
the Prospectus. The other historical financial and statistical
information and
data included or incorporated by reference in the
Registration
Statement, the Time of
Sale Information
and the Prospectus
are,
in all material respects, fairly presented.
The Company
is not an "ineligible issuer" in connection with the
offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any
Free
Writing Prospectus
that the Company is
required to file
pursuant to
Rule
433(d) under the
Securities Act has
been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and
the
applicable rules and
regulations of the
Commission thereunder.
Each
Free
Writing Prospectus that the Company has filed, or is required to
file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or
behalf of or used or referred to by the Company complies or will comply in
all
material respects with
the requirements of
the Securities Act and the
applicable rules and
<PAGE>
regulations of the
Commission
thereunder.
Except for the Free Writing
Prospectuses, if any,
identified in Annex D
hereto, and electronic
road
shows, if any,
furnished to you before first use, the Company has not
prepared, used or
referred to, and will not, without your prior consent,
prepare, use or refer to, any Free Writing Prospectus.
No Material
Adverse Change. Since the date of the most recent
financial statements
of the Company
included or incorporated by reference
in
the Registration
Statement,
the Time of Sale Information and the
Prospectus, there has
not occurred any
material adverse
change, or any
development involving
a prospective material adverse change, in the
condition, financial
or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
except in
each
case as otherwise disclosed in the Registration Statement, the Time
of
Sale
Information and the Prospectus.
Organization and
Good Standing. The Company has been duly
incorporated, is
validly existing as a
corporation in good standing under
the
laws of Delaware,
has the corporate power and authority to own its
property and to
conduct its
business as described in the Time of Sale
Information and the
Prospectus and is duly qualified to transact business
and
is in good standing in
each jurisdiction
in which the conduct
of its
business or
its ownership or leasing of property requires such
qualification, except
to the extent that the failure to be so qualified or
be
in good standing
would not have a material adverse effect on the
business, properties, management, financial position, stockholders'
equity,
results of operations
or prospects
of the Company and its
subsidiaries,
taken as a whole (a "Material Adverse Effect").
Subsidiaries. Each
subsidiary of the Company has been duly organized,
is
validly existing as a corporation, limited liability company or
limited
partnership, as the
case may be, in good
standing under the laws of the
jurisdiction of its
organization,
has the corporate,
limited liability
company or limited partnership power and authority, as the case may be, to
own
its property
and to conduct its
business as described
in the Time of
Sale
Information
and the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct
of
its business
or its ownership or leasing of property
requires such
qualification, except
to the extent that the failure to be so qualified or
be
in good standing would not have a Material Adverse Effect; all of the
outstanding shares of capital stock of the Company (including the
Shares to
be
sold by the Selling
Stockholder) have been duly and validly authorized
and
issued and are fully paid and non-assessable and are not subject to
any
pre-emptive or similar rights; the capital stock of the Company
conforms to
the
description thereof contained in the Registration Statement; and
all of
the
issued shares of capital stock, membership interests or partnership
interests, as the case
may be, of each subsidiary of the Company have been
duly
and validly authorized
and issued, are fully
paid and non-assessable
and,
except as otherwise
described in the Time of Sale Information and the
Prospectus, are owned directly or indirectly by the Company, free
and clear
of
all liens,
encumbrances, equities
or claims, except
those that arise
under the Amended and Restated Credit Agreement dated as of April
28, 2006,
as
amended through the
date hereof,
among the Company, The Kansas City
Southern Railway Company, the subsidiary guarantors named therein and
the
lenders thereto (collectively, the "KCS Credit Facilities")
<PAGE>
Due Authorization. The
Company has full right, power and authority to
execute and deliver this Agreement and perform its obligations
thereunder,
and
all corporate
action required to be taken for the due and proper
authorization,
execution and
delivery of this Agreement and the
consummation of the
transactions
contemplated
hereby have been duly
and
validly taken.
Underwriting
Agreement. This
Agreement has been duly authorized,
executed and delivered by the Company.
No Preemptive
Rights. The sale or delivery of the Shares is not
subject to any
preemptive right of
stockholders
of the Company
arising
under law or certificate of incorporation or by-laws of the
Company, to any
contractual right of first refusal or other right in favor of any
person.
The Rights. The Rights
Agreement has been duly authorized, executed
and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with
its
terms, except as enforceability may be limited by applicable
bankruptcy,
insolvency or
similar laws affecting creditors' rights
generally or by equitable principles relating to enforceability;
and the
Rights have been duly authorized by the Company and validly issued,
and the
poison pill security
has been duly
authorized by the
Company and validly
reserved for issuance and upon the exercise in accordance with the
terms of
the
Rights
Agreement,
will
be validly issued, fully paid and
non-assessable.
No Violation
or Default. Neither the Company nor any of its
subsidiaries is (i) in
violation of its charter or by-laws or similar
organizational
documents; (ii) in
default in any material respect, and no
event has occurred that, 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 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 is bound
or to which any of the
property or assets of the
Company or any of its subsidiaries is subject; or (iii) in
violation in any
material respect
of any law or statute
or any judgment,
order, rule or
regulation of any
court or arbitrator or governmental or regulatory
authority, except
(a) in the case of
clause (i) above, and only with
respect to The Texas Mexican Railway Company, for any such violations that
would not, individually or in the aggregate, have a Material
Adverse Effect
and
(b) in the case of clauses (ii) and (iii) above, for any such default
or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
No Conflicts. The
execution, delivery
and performance by the Company
of
this Agreement, and
the consummation by the Company of the transactions
contemplated hereby
will not contravene any provision of applicable law or
the
certificate
of incorporation or by-laws of the Company and its
subsidiaries or any agreement or other instrument binding upon the Company
and
its subsidiaries that are material to the Company and its
subsidiaries,
taken as a whole, or
any judgment,
order or decree
of any
<PAGE>
governmental body, agency or court having jurisdiction over the
Company and
its
subsidiaries, and no
consent, approval,
authorization or order of, or
qualification with,
any governmental body or agency is required for
the
performance by the Company and its subsidiaries of their
obligations under
this
Agreement,
except such as may be
required by the
securities or blue
sky
laws of the various states in connection with the offer and sale of
the
Shares and the registration of the Shares under the Securities
Act.
Legal
Proceedings.
There are no legal or governmental proceedings
pending or,
to the knowledge of the Company, threatened to which the
Company or any of its
subsidiaries
is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other
than
proceedings
accurately
described in
all material respects in the
Registration Statement, the Time of Sale Information and the
Prospectus and
proceedings that
could not reasonably be expected to have a Material
Adverse Effect,
or which could have a
material advese effect on the power
or
ability of the Company to perform its obligations under this Agreement
or
to consummate the transactions contemplated hereby.
Independent
Accountants.
KPMG LLP, who have certified certain
financial statements
of the Company and its
subsidiaries are
independent
public accountants
with respect to the Company and its
subsidiaries
as
required by the
Securities
Act. KPMG Cardenas Dosal, S.C., who have
certified certain
financial statements
of Grupo KCSM and its subsidiaries
are
independent
public accountants with respect to Grupo KCSM and its
subsidiaries as
required by the
Securities
Act. PricewaterhouseCoopers
S.C., who have audited financial statements of Grupo KCSM and its
subsidiaries (and
delivered its report with respect to the audited
consolidated financial
statements of Grupo KCSM and its subsidiaries as of
December 31, 2004) incorporated by reference in the Registration
Statement,
the
Time of Sale
Information and the
Prospectus, are
independent public
accountants with
respect to Grupo KCSM and its subsidiaries as required by
the
Securities Act.
Title to Real and
Personal Property. The Company and each of its
subsidiaries have good and marketable title in fee simple to, or
have valid
rights to lease or otherwise use, all items of real and
personal property
which are material to the business of the Company and its
subsidiaries, in
each
case free and clear of all liens, encumbrances, claims and defects
and
imperfections of title
except those that (i) arise under the KCS Credit
Facilities or (ii) do
not materially
interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries
and
could not reasonably be expected to have a Material Adverse
Effect.
Title to Intellectual Property. The Company and each of its
subsidiaries own or
possess adequate
rights to use all
patents, patent
applications,
trademarks,
service marks,
trade
names,
trademark
registrations, service mark registrations, copyrights, licenses and
knowhow
(including trade
secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary
for
the conduct of their
<PAGE>
respective businesses,
except where the failure to possess such rights
could not reasonably be expected to have a Material Adverse Effect,
and the
conduct of their respective businesses will not conflict with,
and, except
as
described in the Time of Sale Information and the Prospectus, the
Company and its
subsidiaries have not
received any notice of any claim or
conflict with, any
such rights of others that, if determined adversely to
the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect.
No Undisclosed
Relationships. No
relationship,
direct or
indirect,
exists between or among the Company or any of its subsidiaries,
on the one
hand, and the directors, officers, stockholders, customers or suppliers of
the
Company or any of its
subsidiaries, on the
other, that is required by
the
Securities Act to be
described in the
Registration Statement
and the
Prospectus and that is
not so described in such documents and in the Time
of
Sale Information.
Investment Company Act. The Company is not and, after giving effect
to
the
consummation of the
transactions as described in the 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,
and the rules
and
regulations of the
Commission thereunder
(collectively,
"Investment
Company Act").
Taxes. The
Company and each of its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns
required
to
be filed through the
date hereof and have
paid all taxes due
thereon,
and
no tax deficiency has been determined adversely to the Company or
any
of
its subsidiaries which
has had (nor does the Company have any knowledge
of
any tax deficiency which, if determined adversely to the Company or
any
of
its subsidiaries,
could reasonably be expected to have) a Material
Adverse Effect.
Licenses and Permits. The Company and each of its subsidiaries
possess
all
material licenses, certificates, authorizations and permits issued
by,
and
have made all declarations and filings with, the appropriate
federal,
state or foreign
regulatory agencies
or bodies which are necessary or
desirable for the ownership of their respective properties or the conduct
of
their respective businesses as described in the Registration
Statement,
the
Time of Sale
Information and the Prospectus, except where the failure
to
possess or make the same would not, singularly or in the aggregate,
have
a
Material Adverse
Effect, and, except as disclosed in the Time of
Sale
Information and
the Prospectus, neither the Company nor any of its
subsidiaries has received notification of any revocation or
modification of
any
such license, certificate, authorization or permit or has any
reason to
believe that any such license, certificate, authorization or permit will
not
be renewed in the
ordinary course, except where such revocation,
modification or non renewal could not reasonably be expected to,
singularly
or
in the aggregate, have a Material Adverse Effect.
No Labor Disputes. No
labor disturbance by
or dispute with employees
of
the Company or any of its subsidiaries exists or, to the knowledge of
the
Company, is
contemplated
or threatened, except as would not have a
Material Adverse Effect.
<PAGE>
Compliance With
Environmental Laws.
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 all
permits, licenses or
other approvals
required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all
terms and conditions
of any such permit,
license or
approval, in each case
except as described in the Time of Sale Information
and
the Prospectus or where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure
to
comply with the terms
and conditions of such permits, licenses or
approvals would not,
singly or in the aggregate, have a Material Adverse
Effect.
In the ordinary
course of its business, the Company conducts a
periodic review
of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries. On
the basis
of
such review, the
Company has concluded that, except as described in the
Time
of Sale Information and the Prospectus, there are no costs or
liabilities
associated with
Environmental
Laws
(including,
without
limitation, any
capital or operating
expenditures required
for clean-up,
closure of properties
or compliance with
Environmental Laws or any permit,
license or approval,
any related
constraints on operating activities and
any
potential liabilities
to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect
Except as otherwise
disclosed in the Time of Sale Information and the
Prospectus, there
has been no storage, generation, transportation,
handling, treatment,
disposal, discharge, emission or other release of any
kind
of toxic or other wastes or other hazardous substances by, due to or
caused by the Company or any of its subsidiaries (or, to the knowledge of
the
Company, any other entity (including any predecessor) for whose
acts or
omissions the Company or any of its subsidiaries is or could
reasonably be
expected to be liable) upon any of the property now or previously
owned or
leased by the
Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance,
rule, regulation,
order, judgment,
decree or permit or which would, under any statute or any
ordinance, rule
(including
rule of common law), regulation, order,
judgment, decree or
permit, give rise to any liability, except for any
violation or
liability that could not reasonably be expected to have,
singularly or in the aggregate with all such violations and
liabilities, a
Material Adverse Effect; and, except as otherwise disclosed
in the Time of
Sale
Information and the Prospectus, there has been no disposal,
discharge,
emission or other
release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes
or other
hazardous substances
with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of
any
kind
which could not
reasonably be expected to have, singularly or in the
aggregate with all such discharges and other releases, a Material Adverse
Effect.
Compliance With ERISA.
No "prohibited transaction" (as defined in
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the
<PAGE>
regulations and published interpretations thereunder ("ERISA"), or
Section
4975
of the Internal
Revenue Code of 1986, as amended from time to time
(the
"Code")) or
"accumulated funding
deficiency" (as
defined in Section
302
of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than
events with
respect to which the
30-day notice
requirement
under Section 4043 of
ERISA has been waived) has occurred with respect to
any
employee benefit plan of the Company or any of its subsidiaries which
could reasonably be expected to have a Material Adverse Effect, each such
employee benefit plan is in compliance with applicable law,
including ERISA
and
the Code, except
where such noncompliance, individually or in the
aggregate, could not
reasonably
be expected
to have a Material
Adverse
Effect, the Company
and each of its subsidiaries have not incurred and do
not
expect to incur
liability under Title
IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan for which
the Company
or
any of its subsidiaries would have any liability; and each such pension
plan that is intended
to be qualified under
Section 401 (a) of the Code is
so
qualified in all material respects and nothing has occurred,
whether by
action or by failure to act, which could reasonably be expected to cause
the
loss of such qualification.
Disclosure Controls.
The Company and its subsidiaries maintain an
effective system of
disclosure
controls that is designed to ensure
that
information required to be disclosed by the Company is recorded,
summarized
and
reported to the Commission, including controls and procedures
designed
to
ensure that such
information is accumulated and communication to the
Company's management
as appropriate to
allow timely decisions
regarding
required disclosure.
Accounting Controls. The Company and its subsidiaries maintain
systems
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
or international financial reporting
standards, as the case
may be, and to maintain asset accountability; (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
disclosed in the Time of Sale Information and the Prospectus,
there are no
material weaknesses in the Company's internal controls.
Insurance. The Company
and each of its
subsidiaries
carry, or are
covered by, insurance
covering their
respective properties,
operations,
personnel and businesses, which insurance is in amounts and insures
against
such
losses and risks as
are adequate
to protect the Company and its
subsidiaries and their respective businesses. Neither the Company nor any
of
its subsidiaries
has received notice
from any insurer or agent of such
insurer that material capital improvements or other material
expenditures
are
required or necessary to be made in order to continue such
insurance.
No Unlawful Payments.
Neither the Company
nor, to the best knowledge
of
the Company, any
director, officer, agent, employee or other person
associated with
or acting
<PAGE>
on
behalf of the Company or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment
or other
unlawful expense
relating to political
activity; (ii) made
any direct or
indirect unlawful payment to any foreign or domestic government
official or
employee from
corporate funds;
(iii) violated or is in violation of
any
provision of the Foreign Corrupt Practices Act of 1977, as amended;
or (iv)
made
any unlawful bribe,
rebate, payoff,
influence payment,
kickback or
other unlawful payment.
No Broker's Fees. Neither the Company nor any of its subsidiaries
is a
party to any contract,
agreement or
understanding with any
person (other
than
this Agreement)
that would give rise
to a valid claim
against the
Company or any of its
subsidiaries
or the Underwriter for a brokerage
commission, finder's
fee or like payment in
connection with the
offering
and
sale of the Shares.
No Registration
Rights. No person other than the Selling Stockholder
has
the right to require the Company or any of its subsidiaries to
register
any
securities for sale under the Securities Act by reason of the
filing of
the
Registration Statement with the Commission or, to the best
knowledge of
the
Company, the sale of
the Shares to be sold by the Selling Stockholder
hereunder
Contracts. There
are no contracts, documents, pending legal or
governmental actions,
suits or proceedings of a character that would be
required to be described in the Registration Statement, the Time of Sale
Information and the
Prospectus that are
not set forth or
incorporated by
reference in the Registration Statement, the Time of Sale Information
and
the
Prospectus. All descriptions in the Registration Statement, the
Time of
Sale
Information
and the Prospectus of such contracts or documents are
accurate in all material respects.
No Legal Impediment
to Sale. To the knowledge of the Company, no
action has been taken and no statute, rule, regulation or order has been
enacted, adopted
or issued by any governmental agency or body which
prevents the sale of
the Shares or suspends
the sale of the Share
in any
jurisdiction; no
injunction,
restraining order or
order of any nature by
any
federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its subsidiaries which would prevent or
suspend the
sale of the Shares or the use of the Prospectus in any
jurisdiction; no
action, suit or
proceeding is pending against or, to the
knowledge of the Company, threatened against or affecting the Company or
any
of its subsidiaries
before any court or arbitrator or any governmental
agency, body or official, domestic or foreign, which could reasonably be
expected to interfere
with or adversely
affect the sale of the
Shares or
the
validity of this
Agreement or any action taken or to be taken pursuant
hereto.
No Stabilization. The
Company has not taken,
directly or indirectly,
any
action designed
to or that could
reasonably
be expected to cause
or
result in any stabilization or manipulation of the price of the
Shares.
<PAGE>
Forward-Looking
Statements. No
forward-looking statement (within the
meaning of
Section 27A of the Securities Act and Sect
