Exhibit 1.1
The Dow Chemical Company
130,434,783 Shares
1
Common Stock
($2.50 par value)
Underwriting Agreement
New York, New York
May 6, 2009
To the
Representatives
hereto of the several
Underwriters named in
Schedule III hereto
The Dow Chemical Company, a
corporation organized under the laws of the State of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule III hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
number of shares of common stock, $2.50 par value (“Common
Stock”), of the Company set forth in Schedule I hereto
(the “Company Underwritten Securities”), and the
persons named in Schedule II hereto (the “Selling
Stockholders”) propose, severally and not jointly, to sell to
the several Underwriters the number of shares of Common Stock set
forth in Schedule II hereto (the “Selling Stockholder
Underwritten Securities” and, together with the Company
Underwritten Securities, the “Underwritten
Securities”). The Selling Stockholders also
propose to grant to the Underwriters an option to purchase up to
the number of additional shares of Common Stock set forth in
Schedule II hereto to cover over-allotments, if any (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 I other than you,
the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context
requires. The use of the neuter in this Agreement shall
include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary 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 Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after
1
Plus an option to purchase from
the Selling Stockholders, up to 19,565,217 additional Securities to
cover over-allotments.
the Effective
Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in
Section 20 hereof.
On April 1, 2009, pursuant to an Agreement and
Plan of Merger dated July 10, 2008, among the Company, Rohm and
Haas Company, a Delaware corporation (“Rohm and Haas”)
and Ramses Acquisition Corp. (“Merger Sub”), a direct,
wholly owned subsidiary of the Company, the Company completed the
acquisition of Rohm and Haas through the merger of Merger Sub with
and into Rohm and Haas, with Rohm and Haas as the surviving
corporation and becoming a wholly owned subsidiary of the Company
(such transaction, the “Acquisition”).
The Selling Stockholders are the owners of
Cumulative Perpetual Preferred Stock, Series B (the
“Preferred Securities”), of the Company and have
entered into an agreement, dated May 5, 2009 (the “Purchase
Agreement”), with the Company pursuant to which the Selling
Stockholders have agreed, among other things, to sell (the
“Preferred Securities Sale”) a portion of the Preferred
Securities in consideration for shares of Common
Stock. The number of shares of Common Stock to be issued
for each Preferred Security shall be determined by dividing the
Original Purchase Price (as such term is defined in the Certificate
of Designations governing such Preferred Securities) of such
Preferred Security, plus accrued and unpaid dividends and any
dividends added to the Liquidation Preference (as such term is
defined in the Certificate of Designations governing such Preferred
Securities) to the Closing Date (with respect to the Preferred
Securities purchased by the Company in consideration for the
Selling Stockholder Underwritten Securities) or the Settlement Date
(with respect to the Preferred Securities purchased in
consideration for the Option Securities) by the public offering
price per share of Common Stock as set forth on the cover of the
Final Prospectus (as defined below), less the underwriting
discount.
1.
Representations and Warranties .
(a) The Company represents and warrants to, and
agrees with, each Underwriter and each Selling Stockholder as of
the Execution Time and as of each Closing Date (as defined in
Section 3) as set forth below in this Section 1.
(i) The
Company meets the requirements for use of Form S-3 under the Act
and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 on Form S-3 (File
No. 333-140859), including a related Base 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 and no notice of objection of the Commission
to the use of such Registration Statement or any post-effective
amendment thereto pursuant to Rule 40l (g)(2) under the Act has
been received by the Company. 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 Act against the Company or related to the
offering has been initiated or, to the Company’s knowledge,
threatened by the Commission. 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
prospectus supplements relating to the Securities, 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 Representatives 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 Base Prospectus and any Preliminary
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).
(ii) On
each Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date and on any date on which Option Securities are
purchased, if such date is not the Closing Date (each, 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 each Effective Date and at the
Execution Time, the Registration Statement did not 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 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,
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 Representatives specifically for inclusion
in the Registration Statement or the Final Prospectus (or any
supplement thereto), 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
hereof.
(iii) At
the Execution Time, (i) the Disclosure Package and (ii) each
electronic road show when taken together as a whole with the
Disclosure Package, did 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 Representatives 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 hereof.
(iv) (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).
(v) (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.
(vi) 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 by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus the Company has
promptly notified or will promptly notify the Representatives and
has promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing
sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives 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 hereof.
(vii) The
documents incorporated by reference in the Disclosure Package and
the Final Prospectus, 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 Act or the Exchange Act and the
rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement 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
Registration Statement and the Final 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 the
rules and regulations of the Commission thereunder then in effect
and 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.
(viii) The
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with 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; the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries
considered as a whole (a “Material Adverse
Effect”).
(ix) Union
Carbide Corporation (“UCC”) and Rohm and Haas are the
only subsidiaries of the Company that qualify as a
“significant subsidiary” under Section 1-02(w) of
Regulation S-X. Each of UCC and Rohm and Haas has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with 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; each of UCC and Rohm
and Haas is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not have a
Material Adverse Effect; except as otherwise disclosed in the
Disclosure Package and the Final Prospectus, all of the issued and
outstanding capital stock of each of UCC and Rohm and Haas has been
duly authorized and validly issued, is fully paid and
non-assessable and (except for shares necessary to qualify
directors or to maintain any minimum number of shareholders
required by law) is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, or claim.
(x) The
Company has outstanding capital stock as set forth in the
Disclosure Package and the Final Prospectus (except for subsequent
issuances as described in the Disclosure Package and the Final
Prospectus pursuant to employee benefit plans or pursuant to the
exercise of convertible securities or options and except for
repurchases in connection with open market or repurchase plans or
redemptions of shares of preferred stock). All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, fully paid and non-assessable and
conform to the description thereof contained in the Disclosure
Package and the Final Prospectus. The Company
Underwritten Securities have been duly authorized for issuance and
sale pursuant to this Agreement, when issued and delivered by the
Company to and paid for by the Underwriters pursuant to this
Agreement, will have been validly issued, fully paid and
non-assessable and conform to the description thereof contained in
the Disclosure Package and the Final Prospectus; and the
stockholders of the Company do not have, and will not have on the
Closing Date, any preemptive rights with respect to the Company
Underwritten Securities.
(xi) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xii) The
Purchase Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and
delivery by each of the other parties thereto) constitutes the
valid and legally binding obligation of the Company enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of
creditors’ rights and to general equity
principles. The Selling Stockholder Underwritten
Securities and the Option Securities (collectively, the
“Selling Stockholder Securities”) have been duly
authorized for issuance pursuant to the Purchase Agreement, when
issued and delivered by the Company to the Selling Stockholders in
consideration for the sale of the Preferred Securities as
contemplated by the Purchase Agreement, will have been validly
issued, fully paid and non-assessable and conform to the
description thereof contained in the Disclosure Package and the
Final Prospectus; and the stockholders of the Company do not have,
and will not have on the Closing Date, any preemptive rights with
respect to the Selling Stockholder Securities.
(xiii) The
statements in each of the Disclosure Package and the Final
Prospectus under the captions “Description of the Financing
Transactions,” Description of the Common Stock,”
“Certain United States Federal Tax Considerations for
Non-U.S. Holders,” “Underwriting” and
“Description of Capital Stock,” in each case insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present and
summarize, in all material respects, the matters referred to
therein.
(xiv) The
issuance and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities and this
Agreement and the consummation of the transactions therein and
herein contemplated, will not result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company, UCC
or Rohm and Haas pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company, UCC or Rohm and Haas is a party or by which the
Company, UCC or Rohm and Haas is bound or to which any property or
assets of the Company, UCC or Rohm and Haas is subject, which would
reasonably be expected to have a Material Adverse Effect or affect
the validity of the Securities or the legal authority of the
Company to comply with the Securities or this Agreement; nor will
such action result in any violation of the provisions of the
Restated Articles of Incorporation, as amended, or the Bylaws of
the Company; nor will such action result in a violation of any
statute or any order, rule or regulation of any court or
governmental agency or body in the United States having
jurisdiction over the Company, UCC or Rohm and Haas or any of their
properties, which would reasonably be expected to have a Material
Adverse Effect or affect the validity of the Securities or the
legal authority of the Company to comply with the Securities or
this Agreement.
(xv) No
consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority
or other governmental body in the United States having jurisdiction
over the Company is required for the issuance and sale of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, registrations or qualifications
as have been obtained under the Act and such as may be required by
the securities or Blue Sky laws of the various states and the
securities laws of any jurisdiction outside the United States in
which the Securities are offered.
(xvi) Except
as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto), 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 is pending or, to the
Company’s knowledge, threatened that (i) would 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) would reasonably be expected to have a
Material Adverse Effect.
(xvii) Since
the dates as of which information is given in the Disclosure
Package and the Final Prospectus (exclusive of any amendments or
supplements thereto after the date hereof), there has not been (i)
any material change in the capital stock (other than changes
pursuant to open market or repurchase plans or employee benefit
plans or changes resulting from the conversion or redemption of
outstanding shares of preferred stock or convertible debt) or
long-term debt of the Company and its consolidated subsidiaries
considered as a whole, or (ii) any material adverse change, in or
affecting the business, financial condition or results of
operations of the Company and its consolidated subsidiaries
considered as a whole, otherwise than, in the case of (i) or (ii)
above, as set forth or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendments or supplements
thereto after the date hereof).
(xviii) Deloitte &
Touche LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries (which do not include
Rohm and Haas and its subsidiaries) and delivered their report with
respect to the audited consolidated financial statements and
schedules of the Company and its consolidated subsidiaries (which
do not include Rohm and Haas and its subsidiaries) included or
incorporated by reference in the Disclosure Package and the Final
Prospectus, are independent registered public accountants with
respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(xix) PricewaterhouseCoopers
LLP, who has audited certain financial statements of Rohm and Haas
and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements of Rohm
and Haas included or incorporated by reference in the Disclosure
Package and the Final Prospectus, are independent certified public
accountants with respect to Rohm and Haas under Rule 101 of the
Code of Professional Conduct of the American Institute of Certified
Public Accountants, and its rulings and interpretations.
(xx)
The Company’s consolidated historical financial statements
and schedules (which do not include Rohm and Haas and its
subsidiaries) incorporated by reference in the Preliminary
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 in all material
respects with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under
the caption “Prospectus Supplement Summary — Summary
Historical Financial and Other Data of Dow” and
“Selected Historical Financial and Other Data of Dow”
in the Disclosure Package and the Final Prospectus fairly present,
in all material respects, the information set forth therein on a
basis consistent with that of the Company’s audited financial
statements incorporated by reference in the Disclosure Package and
the Final Prospectus.
(xxi) The
consolidated historical financial statements of Rohm and Haas and
its consolidated subsidiaries incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of Rohm and Haas as
of the dates and for the periods indicated, comply as to form in
all material respects with the applicable accounting requirements
of the Act and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data
set forth under the caption “Prospectus Supplement Summary
— Summary Historical Financial and Other Data of Rohm and
Haas” and “Selected Historical Financial and Other Data
of Rohm and Haas Company” in the Disclosure Package and the
Final Prospectus fairly present, in all material respects, the
information set forth therein on a basis consistent with that of
the audited financial statements of Rohm and Haas and its
consolidated subsidiaries incorporated by reference in the
Disclosure Package and the Final Prospectus.
(xxii) The
pro forma combined condensed financial information of the Company
and its consolidated subsidiaries and the related notes thereto
included in the Disclosure Package and the Final Prospectus have
been prepared in accordance with the Commission’s rules with
respect to pro forma financial information, and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances described therein. The pro forma combined
condensed financial information included in the Disclosure Package
and the Final Prospectus include assumptions that provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial
statement amounts in the pro forma combined condensed financial
information included in the Disclosure Package and the Final
Prospectus. The pro forma combined condensed financial
information included in the Disclosure Package and the Final
Prospectus complies as to form in all material respects with the
applicable requirements of Article 11 of Regulation S-X under the
Act
and the pro
forma adjustments have been properly applied to the historical
amounts in the compilation of that information.
(xxiii) 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 the Final Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(xxiv) No material,
collective labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the Company’s knowledge, is
threatened that would reasonably be expected to have a Material
Adverse Effect.
(xxv) Except as
set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto), the Company and its subsidiaries are in compliance in all
material respects with all applicable laws (including all
applicable laws and regulations relating to the protection of human
health and safety, the environment, or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively
“Environmental Laws”)), ordinances, rules, regulations,
and requirements of governmental authorities, except where (i) the
necessity of compliance therewith is contested in good faith by
appropriate proceedings or (ii) noncompliance therewith would not
have a Material Adverse Effect.
(xxvi) In the ordinary
course of its business, the Company periodically reviews the effect
of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(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). To the
Company’s knowledge, no such associated costs and liabilities
would, singly or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(xxvii) Except as would
not reasonably be expected to have a Material Adverse Effect and
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto), to the Company’s knowledge, the Company or its
subsidiaries own or possess the right to use all patents,
trademarks, service marks, trade names, copyrights, patentable
inventions, trade secrets and know-how used by the Company or its
subsidiaries in, and material to, the conduct of the
Company’s and its subsidiaries’ business taken as a
whole as now conducted or as proposed in the Disclosure Package and
the Final Prospectus to be conducted (collectively, the
“Intellectual Property”). Except as would
not otherwise reasonably be expected to have a Material Adverse
Effect and except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), there are no legal or governmental actions,
suits, proceedings or claims pending or, to the Company’s
knowledge, threatened, against the Company (i) challenging the
Company’s rights in or to any Intellectual Property, (ii)
challenging the
validity or
scope of any Intellectual Property owned by the Company, or (iii)
alleging that the operation of the Company’s business as now
conducted infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of a third
party.
(xxviii) There is and has been
no failure in any material respects on the part of the Company and
any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 relating to loans and Sections
302 and 906 relating to certifications.
(xxix) The Company
maintains a system of internal control over financial reporting
with respect to itself and its consolidated subsidiaries sufficient
to provide reasonable assurance that (i) receipts and expenditures
of the Company are made only in accordance with the general or
specific authorizations of the management or directors of the
Company; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States 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 material
differences. The management of the Company concluded
that such internal control over financial reporting was effective
as of December 31, 2008 and, other than as may result from the
Acquisition, there have been no changes in the Company’s
internal control over financial reporting since such date that have
materially affected, or are reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(xxx) The
Company maintains “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Exchange Act);
based on the evaluation of these disclosure controls and
procedures, the Company’s Chief Executive Officer and Chief
Financial Officer concluded that the Company’s disclosure
controls and procedures were effective as of March 31,
2009.
(xxxi) The Company
has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause
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; provided however,
that no such representation is made with respect to any action
undertaken by the Underwriters or the Selling
Stockholders.
(xxxii) 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.
Any certificate signed by any officer of the
Company and delivered to the Representatives 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.
(b) Each
Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, the Company and each Underwriter
that:
(i) Such
Selling Stockholder is the record and beneficial owner of the
number of Preferred Securities set forth opposite such Selling
Stockholders name in Column A of Schedule II and on the Closing
Date will be the record and beneficial owner of the number of
shares of Common Stock set forth opposite such Selling
Stockholder’s name in Column B of Schedule II hereto and on
each Settlement Date will be the record and beneficial owner of the
number of shares of Common Stock set forth opposite such
Selling Stockholder’s name in Column C of Schedule II hereto
(assuming that the Underwriters exercise their option to purchase
the Option Securities in full and that the Company delivers the
Option Securities to the Selling Stockholders in compliance with
the Purchase Agreement), in each case free and clear of all liens,
encumbrances, equities and claims, has validly entered into the
Purchase Agreement and has full power and authority to sell its
interest in the Selling Stockholder Securities to be received in
consideration for the sale of its Preferred Securities pursuant to
the Purchase Agreement, and, assuming that each Underwriter
acquires its interest in the Securities it has purchased from such
Selling Stockholder without notice of any adverse claim (within the
meaning of Section 8-105 of the New York Uniform Commercial Code
(“UCC”)), each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust
Company or other securities intermediary by making payment therefor
as provided herein, and that has had such Securities credited to
the securities account or accounts of such Underwriters maintained
with The Depository Trust Company or such other securities
intermediary, will have acquired a security entitlement (within the
meaning of Section 8-102(a)(17) of the UCC) to such Securities
purchased by such Underwriter, and no action based on an adverse
claim (within the meaning of Section 8-105 of the UCC) may be
asserted against such Underwriter with respect to such
Securities.
(ii) This
Agreement has been duly authorized, executed and delivered by such
Selling Stockholder. The Purchase Agreement has been
duly authorized, executed and delivered by such Selling Stockholder
and (assuming the due authorization, execution and delivery by the
Company) constitutes the valid and legally binding obligation of
such Selling Stockholder enforceable against such Selling
Stockholder in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditors’ rights
and to general equity principles.
(iii) Such
Selling Stockholder has not taken, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause 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; provided however, that no such representation is made
with respect to any action undertaken by the
Underwriters.
(iv) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
such Selling Stockholder of the transactions contemplated herein
(including the Preferred Securities Sale), except such as may have
been obtained under the Act, as may be required by the rules of the
New York Stock Exchange and the Financial Industry Regulatory
Authority, Inc. (“FINRA”) 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 and
such other approvals as have been obtained.
(v) Neither
the sale of the Securities being sold by such Selling Stockholder
nor the consummation of any other of the transactions herein
contemplated (including the Preferred Securities Sale) by such
Selling Stockholder or the fulfillment of the terms hereof by such
Selling Stockholder will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter
or by-laws (or comparable governing documents) of such Selling
Stockholder or the terms of any indenture or other agreement or
instrument to which such Selling Stockholder or any of its
subsidiaries (if applicable) is a party or bound, or any judgment,
order or decree applicable to such Selling Stockholder or any of
its subsidiaries (if applicable) of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder or any of its
subsidiaries (if applicable), other than in each case any conflict,
breach, violation or default which would not reasonably be expected
to have a material adverse effect on the ability of such Selling
Stockholder to consummate the transactions herein
contemplated.
(vi) On
each Effective Date and at the Execution Time, the Registration
Statement did not 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 in order to make the statements therein
not misleading; the Disclosure Package did 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; and
on the date of any filing pursuant to Rule 424(b) and on the
Closing 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
representations and warranties contained in this clause (vi) shall
apply only to written information furnished in writing to the
Company or to the Underwriters by or on behalf of such Selling
Stockholder specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of such Selling Stockholder consists of
the information described as such in Section 8(b)
hereof.
Any certificate signed by any Selling
Stockholder (or any officer thereof, if applicable) and delivered
to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Stockholder, 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 and the Selling Stockholders agree,
severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company and the Selling Stockholders, at the purchase price per
share to the Underwriters set forth in Schedule I hereto, the
number of Securities set forth opposite such Underwriter’s
name in Schedule III hereto.
(b)
Subject to the terms and conditions of this Agreement and the
Purchase Agreement and in reliance upon the representations and
warranties herein set forth, the Selling Stockholders hereby grant
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 telefax notice given in accordance
with Section 12 hereof by the Representatives to the Company and
the Selling Stockholders setting forth the number of Option
Securities as to which the several Underwriters are exercising the
option and the Settlement Date. In the event that the
Underwriters exercise less than their full over-allotment option,
the number of Option Securities to be sold by each Selling
Stockholder listed on Schedule II shall be, as nearly as
practicable, in the same proportion as the maximum number of Option
Securities to be sold by each Selling Stockholder and the number of
Option Securities to be sold.
(c)
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.
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 immediately preceding
the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto, or at such time on such later
date not more than three Business Days after the foregoing date as
the Representatives, the Company and the Selling Stockholders shall
agree upon, which date and time may be postponed by agreement among
the Representatives, the Company and the Selling Stockholders or as
provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the respective
aggregate purchase prices of the Securities being sold by the
Company and each of the Selling Stockholders to or upon the order
of the Company and the Selling Stockholders by wire transfer
payable in same-day funds to the respective accounts specified by
each of the Company and the Selling
Stockholders. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall
otherwise instruct.
The Company will pay all applicable state
transfer taxes, if any, involved in the transfer to the several
Underwriters of the Securities to be purchased by them from such
Selling
Stockholder and
the respective Underwriters will pay any additional stock transfer
taxes involved in further transfers.
If the option provided for in Section 2(b)
hereof is exercised after the third Business Day immediately
preceding the Closing Date, the Selling Stockholders will deliver
the Option Securities (at the expense of the Company) to the
Representatives, at 388 Greenwich Street, New York, New York, on
the date agreed upon by the Company, the Selling Stockholders and
the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the
several Underwriters, against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Selling Stockholder by wire transfer payable
in same-day funds to the respective accounts specified by each of
the Selling Stockholders. If settlement for the Option
Securities occurs after the Closing Date, the Selling Stockholders
will deliver to the Representatives on the Settlement Date for the
Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as
of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4.
Offering by Underwriters . It is
understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final
Prospectus.
5.
Agreements . (a) The
Company agrees with the several Underwriters and the Selling
Stockholders that:
(i) Prior
to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus unless the Company has furnished
to the Representatives a copy for their review prior to filing and
will not file any such proposed amendment or supplement to which
the Representatives reasonably object. The Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination
of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such
purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such
issuance,
occurrence or notice of objection, to obtain as soon as practicable
the withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using
its reasonable best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
(ii) If,
at any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Representatives so that any
use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to
correct such statement or omission; and (iii) supply any amendment
or supplement to the Representatives in such quantities as the
Representatives may reasonably request.
(iii) If,
at any time when a prospectus relating to the Securities is
required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any
event occurs as a result of which the Disclosure Package or the
Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Disclosure Package or the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Disclosure Package or the
Final Prospectus, the Company promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect
such compliance, (iii) use its reasonable best efforts to have any
amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to
avoid any disruption in use of the Disclosure Package or the Final
Prospectus and (iv) supply any supplemented Disclosure Package
or Final Prospectus to the Representatives in such quantities as
they may reasonably request.
(iv) As
soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings
statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and
Rule 158.
(v) The
Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other
Und
