Brookdale Senior Living
Inc.
Goldman, Sachs
& Co.
Barclays Capital Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives
of the several Underwriters
named in Schedule I hereto,
c/o Goldman,
Sachs & Co.
85 Broad Street
New York, New York 10019
Barclays
Capital Inc.
745 Seventh Avenue
New York, New York 10019
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
One Bryant
Park
New York, New York 10036
Ladies and Gentlemen:
Brookdale Senior
Living Inc., a Delaware corporation (the “ Company
”), proposes, subject to the terms and conditions set forth
herein, to issue and sell to the Underwriters named in Schedule
I hereto (the “ Underwriters ”) an aggregate
of 13,953,489 shares (the “Firm Shares”) of common
stock, par value $0.01 per share, of the Company (“ Common
Stock ”). In addition, the Company has granted to the
Underwriters an option to purchase up to an additional 2,093,023
shares (the “ Optional Shares ”) of Common
Stock, as provided in Section 2 . The Firm Shares and
the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively
called the “ Shares ”. Goldman, Sachs & Co.,
Barclays Capital Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated have agreed to act as representatives of the several
Underwriters (in such capacity, the “ Representatives
”) in connection with the offering and sale of the
Shares.
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A
registration statement on Form S-3 (File No. 333-159146),
which contains a base prospectus (the “ Base
Prospectus ”) to be used in connection with the public
offering and sale of the Shares has been filed with the Securities
and Exchange Commission (the “ Commission ”);
such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, at each time of
effectiveness under the Securities Act of 1933 and the rules and
regulations promulgated thereunder (collectively, the “
Act ”), including any required information deemed to
be a part thereof at the time of effectiveness pursuant to
Rule 430B under the Act or the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder (collectively,
the “ Exchange Act ”), is called the “
Registration Statement .” Any registration statement
filed by the Company pursuant to Rule 462(b) under the Act is
called the “ Rule 462(b) Registration Statement
,” and from and after the date and time of filing of the Rule
462(b) Registration Statement the term “ Registration
Statement ”; provided, however, that “Registration
Statement” without reference to a time means the Registration
Statement as of the time of the first contract of sale for the
Shares, which time shall be considered the “new effective
date” of the Registration Statement with respect to the
Underwriters and the Shares (within the meaning of
Rule 430B(f)(2) under the Act (“
Rule 430B(f)(2) ”)) shall include the Rule 462(b)
Registration Statement. Any preliminary prospectus supplement to
the Base Prospectus that describes the Shares and the offering
thereof and is used prior to filing of the Final Prospectus is
called, together with the Base Prospectus, a “ preliminary
prospectus .” The term “ Prospectus ”
shall mean the final prospectus relating to the Shares that is
first filed pursuant to Rule 424(b) after the date and time that
this Agreement is executed and delivered by the parties hereto. Any
reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act; any reference to any
amendment or supplement to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such preliminary prospectus or Prospectus,
as the case may be, under the Exchange Act, and incorporated by
reference in such preliminary prospectus or Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
any “ issuer free writing prospectus ” as
defined in Rule 433 under the Act relating to the Shares is
hereinafter called an “ Issuer Free Writing Prospectus
”);
(b) The
Registration Statement has been declared effective by the
Commission under the Act. No stop order suspending the
effectiveness of the Registration Statement is in effect, the
Commission has not issued any order or notice preventing or
suspending the use of the Registration Statement, any preliminary
prospectus or the Prospectus and no proceedings for such purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated or threatened by the
Commission;
(c) Each
preliminary prospectus and the Prospectus when filed conformed in
all material respects with the Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it
became effective and at the date hereof, conformed and
will
2
conform in all
material respects with the 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. The Prospectus (including
any Prospectus wrapper), as amended or supplemented, as of its
date, at the date hereof, at the time of any filing pursuant to
Rule 424(b) under the Act and at the Time of Delivery (as defined
herein) did not 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. The representations and
warranties set forth in the two immediately preceding sentences do
not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 9(b) . There
is no contract or other document required to be described in the
Prospectus or to be filed as an exhibit to the Registration
Statement that has not been described or filed as
required;
(d) The
documents incorporated by reference in the 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
Exchange Act. Any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, 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;
(e) For
the purposes of this Agreement, the “ Applicable Time
” is 5:15 p.m., New York City time, on June 2, 2009. The
“ Pricing Disclosure Package ” shall mean
(i) the preliminary prospectus relating to the Shares
immediately prior to that time, (ii) the Issuer Free Writing
Prospectus listed on Schedule II(b) hereto and
(iii) the information set forth on Schedule IV
relating to the number of Shares being sold and the price at which
the Shares will be sold to the public. As of the Applicable Time,
the Pricing Disclosure Package did not include 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 each
Issuer Free Writing Prospectus listed on Schedule II(a)
or Schedule II(b) hereto does not conflict with the
information contained in the Registration Statement that has not
been superseded or modified, including any prospectus or prospectus
supplement that is or becomes part of the Registration Statement,
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include 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; provided, however, that this
representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 9(b)
;
3
(f) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included in the
Pricing Disclosure Package and the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Disclosure Package
and the Prospectus, and, since the respective dates as of which
information is given in the Registration Statement and the Pricing
Disclosure Package and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any
development that would reasonably be expected to involve a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders’
equity, assets or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Pricing Disclosure Package and the
Prospectus;
(g) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as (A) are
described in the Pricing Disclosure Package and the Prospectus,
(B) do not, individually or in the aggregate, result in a
material adverse effect on the current or future consolidated
financial position, stockholders’ equity, assets or results
of operations of the Company and its subsidiaries (a “
Material Adverse Effect ”), or (C) would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are described in the Pricing Disclosure Package and
the Prospectus or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect;
(h) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Disclosure Package and the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, except to the extent that the failure to be so
qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and each subsidiary
of the Company that is listed on Schedule III to this
Agreement has been duly organized, is validly existing and is in
good standing under the laws of its jurisdiction of incorporation
or formation, as applicable;
(i) The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and the Prospectus, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and conform to the description of the Common Stock contained in the
Pricing Disclosure Package and the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors’ qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (except for
the security interest in
4
favor of Bank
of America, N.A., as administrative agent under the Second Amended
and Restated Credit Agreement, dated February 27, 2009, as
amended);
(j) The
unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Common
Stock contained in the Pricing Disclosure Package and the
Prospectus;
(k) The
issue and sale of the Shares to be sold by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions contemplated
herein will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
(x) any indenture, mortgage, deed of trust, loan agreement,
lease, sublease 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, (y) the Amended and Restated Certificate of
Incorporation or Amended and Restated By-laws of the Company or
(z) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties, except in
the case of clauses (x) and (z) for such conflicts,
breaches, defaults or violations that would not, individually or in
the aggregate, reasonably be expected to result in a Material
Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body or any other third party is required
for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except
the registration under the Act of the Shares and, except for such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(l) Neither
the Company nor any of its subsidiaries is (x) in violation of
its certificate of incorporation, by-laws, limited liability
company operating agreement or partnership agreement, as
applicable, or (y) in default in the performance or observance
of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, except in the case of clause
(x), but only with respect to subsidiaries of the Company, and
clause (y) for such violations or defaults that would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect;
(m) The
statements set forth in the Pricing Disclosure Package and the
Prospectus under the caption “Description of Capital
Stock”, insofar as they purport to constitute a summary of
the terms of the Common Stock, under the captions “Material
U.S. Federal Income and Estate Tax Considerations to Non-U.S.
Holders”, “Business — Government
Regulation”, “Business — Environmental
Matters” and “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(n) Other
than as set forth in the Pricing Disclosure Package and the
Prospectus, there are no legal or governmental proceedings pending
to which the Company or
5
any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company, any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect;
and, to the Company’s knowledge, no such proceedings or any
investigations are threatened or contemplated by governmental
authorities or threatened by others;
(o) The
Company is not and, after giving effect to the offering and sale of
the Shares, will not be an “investment company”, as
such term is defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(p) The
financial statements included in the Pricing Disclosure Package and
the Prospectus (taken together with the related notes and schedules
thereto) present fairly, in all material respects, the financial
position of the Company and its subsidiaries as of the dates shown
and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis and the schedules
included in each Registration Statement present fairly, in all
material respects, the information required to be stated
therein;
(q) Ernst
& Young LLP, who have certified certain financial statements of
the Company and its subsidiaries incorporated by reference in the
Registration Statement and incorporated by reference in the Pricing
Disclosure Package and the Prospectus, are independent public
accountants as required by the Act and the Exchange Act and the
rules and regulations of the Commission thereunder;
(r) The
Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting;
(s) Since
the date of the latest audited financial statements of the Company
included in the Pricing Disclosure Package and the Prospectus,
there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting;
(t) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective;
(u) Each
of the Company and its subsidiaries (x) has all certificates,
consents, exemptions, orders, permits, licenses, authorizations, or
other approvals (each, an
6
“
Authorization ”) of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary or required to engage in the
business currently conducted by it in the manner described in the
Pricing Disclosure Package and the Prospectus; (y) all such
Authorizations are valid and in full force and effect; and
(z) each of the Company and its subsidiaries is in compliance
in with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto, except,
with respect to (x), (y) and (z), as would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and there are no proceedings pending or, to the
best of the Company’s knowledge, threatened, to revoke,
cancel or terminate such Authorizations and applications and the
Company is not aware of any basis on which such Authorizations
could not be renewed or, in the case of applications, will not be
issued without contest;
(v) Each
of the Company and its subsidiaries owns or possesses or has the
right to use the licenses, material copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), domain names,
trademarks, service marks and trade names (collectively, the
“Intellectual Property ”) presently employed by
it in connection with its operations, except where the failure to
own or possess or have the right to use such Intellectual Property
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the
foregoing. To the knowledge of the Company and its subsidiaries,
the use of such Intellectual Property in connection with the
business and operations of the Company and its subsidiaries as
described in the Pricing Disclosure Package does not infringe on
the rights of any person;
(w) All
tax returns required to be filed by the Company and its
subsidiaries in all jurisdictions have been timely and duly filed,
other than those filings being contested in good faith and except
where the failure to file would not, individually or in the
aggregate, have a Material Adverse Effect. There are no tax returns
of the Company or its subsidiaries that are currently being audited
by state, local or federal taxing authorities or agencies (and with
respect to which the Company or its subsidiaries has received
notice), where the findings of such audit could reasonably be
expected to result in a Material Adverse Effect. All taxes,
including withholding taxes, penalties and interest, assessments,
fees and other charges due or claimed to be due from such entities,
have been paid, other than those being contested in good faith and
for which adequate reserves have been provided or those currently
payable without penalty or interest or those that could not
reasonably be expected to result in a Material Adverse
Effect;
(x) Except
as disclosed in the Pricing Disclosure Package and the Prospectus,
each of the Company and its subsidiaries maintains insurance
covering its properties, operations, personnel and businesses which
insures against such losses and risks as are adequate in accordance
with its reasonable business judgment to protect the Company and
its subsidiaries and their businesses;
(y) Except
as disclosed in the Pricing Disclosure Package and the Prospectus,
there are no material business relationships or related party
transactions which would be required
7
to be disclosed
therein by Item 404 of Regulation S-K of the Commission
and such business relationship or related party transaction
described therein is a fair and accurate description in all
material respects of the relationships and transactions so
described;
(z) Each
of the Company and its subsidiaries is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
Company or any of its subsidiaries would have any material
liability; each of the Company and its subsidiaries has not
incurred and does not reasonably expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or
(ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company or any of its
subsidiaries would have any material liability, 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 would cause the loss of such
qualification;
(aa) Each
of the Company and its subsidiaries is and has been in compliance
with all applicable Environmental Laws (as defined below), except
where failure to comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. To the best of the Company’s knowledge, there has
been no material seepage, leak, escape, leach, discharge,
injection, release, emission, spill, pumping, pouring, emptying,
dumping, disposing, or migrating or any threat thereof of any
Hazardous Material (as defined below) on, in, under, or from any
real property referred to in the Pricing Disclosure Package and the
Prospectus which requires any disclosure, investigation, cleanup,
remediation, monitoring, maintenance, abatement or deed or use
restriction, or which will give rise to any other costs or
liabilities to the Company or its subsidiaries under any
Environmental Laws. There are no past, present or, to the
Company’s knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to interfere
with or prevent compliance by the Company or its subsidiaries with
Environmental Laws, or that could reasonably be expected to give
rise to any material costs or liabilities, which could reasonably
be expected to, either individually or in the aggregate, have a
Material Adverse Effect. There are no judicial or administrative
proceedings of an environmental nature pending, or to the best of
the Company’s knowledge, threatened against the Company or
its subsidiaries which could reasonably be expected to be material
to the business or financial condition of the Company and its
subsidiaries to involve potential damages, monetary sanctions,
capital expenditures, deferred charges or charges to income
exceeding ten percent of the current assets of the Company and its
subsidiaries or to involve potential monetary sanctions of
$100,000.00 or more. None of the Company or its subsidiaries has
received notice from any governmental agency or body or other
person of any actual or alleged violation of or actual or alleged
liability under any Environmental Law, and does not otherwise have
knowledge of, any occurrence, condition or circumstance which, with
notice, passage of time, or failure to act, would give rise to any
claim or liability under or pursuant to any Environmental Law. The
Company or its subsidiaries, has not arranged for the disposal of
any Hazardous Material at, or transported any Hazardous Material
to, any site which could result in material liability for the
Company or its subsidiaries. The Company or its subsidiaries has
not entered into any agreement relating to any
8
alleged
violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous
Materials. As used herein, “ Environmental Law ”
means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit,
license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, including, but
not limited to, those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials,
and “ Hazardous Materials ” means any material
(including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes, asbestos, silica, mixed dust,
petroleum or constituents thereof, bacteria, radon, mold or fungi)
that is regulated by or may give rise to liability under any
Environmental Law. The Company has provided you copies of all
materials and potentially material environmental studies,
investigations, reports or assessments concerning the Company, or
any currently or previously owned or leased properties within its
possession or control. In the ordinary course of its business, the
Company conducts a periodic review of the effect of the
Environmental Laws on its business, operations and properties, in
the course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties
or compliance with the Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties);
(bb) At
the time of filing the Registration Statement the Company was not
and is not an “ineligible issuer,” as defined under
Rule 405 under the Act;
(cc) There
are no persons with registration or other similar rights to have
any securities registered for sale under the Registration Statement
or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived;
(dd) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer or employee of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “ FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith;
(ee) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by
any
9
governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened; and
(ff) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer or employee of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company
will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds, to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
2. Subject to
the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price per share of $10.239375, the
number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares, provided that the total number of Firm Shares
shall not be reduced by such adjustment) determined by multiplying
the aggregate number of Firm Shares to be sold by the Company by a
fraction, the numerator of which is the aggregate number of Firm
Shares
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