Exhibit 1.1
The South Financial Group, Inc.
75,000,000 Shares of Common Stock
Underwriting Agreement
June 19, 2009
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The
South Financial Group, Inc., a South Carolina corporation (the
“Company”), proposes to issue and sell to Morgan
Stanley & Co. Incorporated (the “Underwriter”), an
aggregate of 75,000,000 shares (the “Underwritten
Shares”) of common stock, par value $1.00 per share, of the
Company (the “Common Stock”) and, at the option of the
Underwriter, up to an additional 10,000,000 shares of Common Stock
(the “Option Shares”). The Underwritten Shares and the
Option Shares are herein referred to as the “Shares.”
The shares of Common Stock to be outstanding after giving effect to
the sale of the Shares are referred to herein as the
“Stock.”
The
Company hereby confirms its agreement with the Underwriter
concerning the purchase and sale of the Shares, as
follows:
1.
Registration Statement. 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 (File No.
333-157706), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus included in
the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities
Act) in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. Any reference in this
Agreement 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 Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be, and any reference to
“amend,” “amendment,” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
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 used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or
prior to the Applicable Time (as defined below), the Company had
prepared the following information (collectively with the pricing
term sheet set forth on Annex C), the “Pricing Disclosure
Package”): the Preliminary Prospectus dated June 18, 2009 and
each “free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex D
hereto.
“Applicable Time” means 8:30 A.M., New York City time,
on June 19, 2009.
2.
Purchase of the Shares by the Underwriter.
(a)
The Company agrees to issue and sell the Underwritten 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
to purchase from the Company the respective number of Underwritten
Shares set forth opposite the Underwriter’s name in Schedule
1 hereto at a price per share (the “Purchase Price”) of
$0.945.
In
addition, the Company agrees to issue and sell the Option 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, shall
have the option to purchase from the Company the Option Shares at
the Purchase Price less an amount per share equal to any dividends
or distributions declared by the Company and payable on the
Underwritten Shares but not payable on the Option
Shares.
The Underwriter may exercise the option to
purchase Option Shares at any time in whole, or from time to time
in part, on or before the thirtieth day following the date of the
Prospectus, by written notice from the Underwriter to the Company.
Such notice shall set forth the aggregate number of Option Shares
as to which the option is being exercised and the date and time
when the Option Shares are to be delivered and paid for, which may
be the same date and time as the Closing Date (as hereinafter
defined) but shall not be earlier than the Closing Date or later
than the tenth full business day (as hereinafter defined) after the
date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 10 hereof). Any such
notice shall be given at least two business days prior to the date
and time of delivery specified therein.
(b)
The Company understands that the Underwriter intends to make a
public offering of the Shares as soon after the effectiveness of
this Agreement as in the judgment of the Underwriter is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriter may offer and sell Shares to or through any affiliate
of the Underwriter.
(c)
Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company
to the Underwriter in the case of the Underwritten Shares, at the
offices of Morrison & Foerster LLP at 10:00 A.M., New York City
time, on June 24, 2009, 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 Company may agree upon in
writing or, in the case of the Option Shares, on the date and at
the time and place specified by the Underwriter in the written
notice of the Underwriter’s election to purchase such Option
Shares. The time and date of such payment for the Underwritten
Shares is referred to herein as the “Closing Date,” and
the time and date for such payment for the Option Shares, if other
than the Closing Date, is herein referred to as the
“Additional Closing Date.”
Payment for the Shares to be purchased on the
Closing Date or the Additional Closing Date, as the case may be,
shall be made against delivery to the Underwriter for the account
of the Underwriter of the Shares to be purchased on such date or
the Additional Closing Date, as the case may be, with
any
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transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”)
unless the Underwriter shall otherwise instruct. The certificates
for the Shares will be made available for inspection and packaging
by the Underwriter at the office of DTC or its designated custodian
not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date or the Additional Closing Date, as the
case may be.
3.
Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter that:
(a)
Preliminary Prospectus. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied
in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained
any untrue statement of a material fact or omitted 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 furnished to the
Company in writing by or on behalf of the Underwriter expressly for
use in any Preliminary Prospectus, it being understood and agreed
that the only such information furnished by the Underwriter
consists of the information described as such in Section 7(b)
hereof.
(b)
Pricing Disclosure Package . The Pricing Disclosure
Package as of the Applicable Time did not, and as of the Closing
Date and as of the Additional Closing Date, as the case may be,
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
furnished to the Company in writing by or on behalf of the
Underwriter expressly for use in such Pricing Disclosure Package,
it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described
as such in Section 7(b) hereof.
(c)
Issuer Free Writing Prospectus. Other than the
Registration Statement, any Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriter in its capacity as such) has not
prepared, used, authorized, approved or referred to and will not
prepare, 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) an “Issuer 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, each electronic road show and any other written
communications approved in advance by the Underwriter. Each such
Issuer Free Writing Prospectus complied in all material respects
with the Securities Act, has been or will be (within the time
period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby) and, when taken
together with any Preliminary Prospectus accompanying, or delivered
prior to delivery of, or filed prior to the first use of, such
Issuer Free Writing Prospectus, did not, and as of the Closing Date
and as of the Additional Closing Date, as the case may be, 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
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they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing
Prospectus or Preliminary Prospectus in reliance upon and in
conformity with information furnished to the Company in writing by
or on behalf of the Underwriter expressly for use in such Issuer
Free Writing Prospectus or Preliminary Prospectus, it being
understood and agreed that the only such information furnished by
the Underwriter consists of the information described as such in
Section 7(b) hereof.
(d)
Registration Statement and Prospectus. The
Registration Statement has been declared effective by the
Commission. 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 of
the Shares has been initiated or threatened by the Commission; as
of the applicable effective date of the Registration Statement and
any post-effective amendment thereto, the Registration Statement
and any such post-effective amendment 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 and as of the Additional Closing Date, as
the case may be, the Prospectus 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 furnished to the Company in writing by
or on behalf of the Underwriter expressly for use in the
Registration Statement and the Prospectus and any amendment or
supplement thereto, it being understood and agreed that the only
such information furnished by the Underwriter consists of the
information described as such in Section 7(b) hereof.
(e)
No Conflict of Any Issuer Free Writing Prospectus with
Registration Statement. Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified. 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 or on behalf of the Underwriter specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of the Underwriter consists
of the information described as such in Section 7(b)
hereof.
(f)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed with the
Commission conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
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, the Prospectus or the Pricing Disclosure
Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. In the past
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12 calendar months, the Company has filed all
documents required to be filed by it prior to the date hereof with
the Commission pursuant to the reporting requirements of the
Exchange Act.
(g)
Organization and Qualification . The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of South Carolina and the Company is
qualified to do business as a foreign corporation in each
jurisdiction in which qualification is required, except where
failure to so qualify would not have a Material Adverse Effect (as
defined herein). The Company’s subsidiaries (each a
“Subsidiary” and collectively the
“Subsidiaries”) are listed on Schedule 1 hereto. The
Company’s only “significant subsidiary” (as
defined in Rule 1-02 of Regulation S-X under the Exchange Act) is
Carolina First Bank. Except as otherwise stated on Schedule 1
hereto, each Subsidiary is a direct or indirect wholly owned
subsidiary of the Company. Each Subsidiary is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and is qualified to do business as a
foreign corporation in each jurisdiction in which qualification is
required, except where failure to so qualify would not have a
Material Adverse Effect.
(h)
Bank Holding Company Act . The Company is duly registered as
a bank holding company under the Bank Holding Company Act of 1956,
as amended (the “BHC Act”). The Company’s banking
subsidiary holds the requisite authority from the South Carolina
State Board of Financial Institutions to do business as a
state-chartered banking corporation under the laws of the State of
South Carolina. The Company and its banking subsidiary are in
compliance in all material respects with all laws administered by
and regulations of the U.S. Department of Treasury, Board of
Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation (the “FDIC”), the Office of
Thrift Supervision, and any other federal or state bank regulatory
authority with jurisdiction over the Company or any of its
subsidiaries (which shall include, for the avoidance of doubt, the
U.S. Department of Treasury in respect of the TARP Capital Purchase
Program) (the “Bank Regulatory Authorities”), other
than where such failures to comply would not have a Material
Adverse Effect on the Company and its subsidiaries, taken as a
whole.
(i)
Authorized Capital Stock . The Company had duly authorized
and validly issued outstanding capitalization as set forth under
the heading “Capitalization” in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; the
issued and outstanding shares of capital stock have been duly
authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities, and conform in all material respects to the description
thereof contained in the Registration Statement, the Pricing
Disclosure Package and the Prospectus. Except for options,
restricted stock, restricted stock units and similar securities
issued under the Company’s existing shareholder-approved
equity compensation plans or as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the
Company does not have outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase,
any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any
such options, rights, convertible securities or obligations. Except
for the conversion rights set forth on Schedule 2, with respect to
each of the Subsidiaries (i) all the issued and outstanding shares
of such Subsidiary’s capital stock have been duly authorized
and validly issued, are fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws,
were not issued in violation of or subject to any preemptive rights
or other rights to subscribe for or purchase securities, and (ii)
there are no outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any
securities or
5
obligations convertible into, or any contracts
or commitments to issue or sell, shares of such Subsidiary’s
capital stock or any such options, rights, convertible securities
or obligations.
(j)
Issuance, Sale and Delivery of the Shares . The Shares
have been duly authorized and, when issued, delivered and paid for
in the manner set forth in this Agreement, will be validly issued,
fully paid and nonassessable, and will conform in all material
respects to the description thereof set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. No
preemptive rights or other rights to subscribe for or purchase any
shares of capital stock of the Company exist with respect to the
issuance and sale of the Shares by the Company pursuant to this
Agreement. Other than the holder(s) of the warrant and the
preferred stock of the Company issued pursuant to the Capital
Purchase Program of the U.S. Department of the Treasury, no
stockholder of the Company has any right (which has not been waived
or has not expired by reason of lapse of time) to require the
Company to register the sale of any capital stock owned by such
stockholder under the Registration Statement. No further approval
or authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Shares to
be sold by the Company as contemplated herein.
(k)
Due Execution, Delivery and Performance of the Agreement
. The Company has full legal right, corporate power and
authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company. This Agreement constitutes a
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors’ rights
and the application of equitable principles relating to the
availability of remedies, and subject to 12 U.S.C.
§1818(b)(6)(D) (or any successor statute) and similar bank
regulatory powers and to the application of principles of public
policy, and except as rights to indemnity or contribution,
including but not limited to, indemnification provisions set forth
in Section 7 hereof may be limited by federal or state securities
law or the public policy underlying such laws.
(l)
Accountants .
PricewaterhouseCoopers LLP, which have expressed their
opinion with respect to the consolidated financial statements
contained in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008, which is incorporated by reference
into the Registration Statement, the Pricing Disclosure Package and
the Prospectus, are registered independent public accountants as
required by the Securities Act and the rules and regulations
promulgated thereunder (the “1933 Act Rules and
Regulations”) and by the rules of the Public Accounting
Oversight Board.
(m)
No Conflicts, Defaults or Consents . The execution and
performance of this Agreement by the Company and the consummation
of the transactions herein contemplated will not (i) violate any
provision of the amended and restated articles of incorporation or
bylaws of the Company or the organizational documents of any
Subsidiary and (ii) except as would not reasonably be expected to
result in a Material Adverse Effect, will not (x) result in the
creation of any lien, charge, security interest or encumbrance upon
any assets of the Company or any Subsidiary pursuant to the terms
or provisions of, and will not conflict with, result in the breach
or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under, or give rise to the
accelerated due date of any payment due under, any agreement,
mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument to which any of the Company or any
Subsidiary is a party or by which any of the Company or any
Subsidiary or their respective properties may be bound or affected
or (y) violate any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory
body,
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administrative agency or other governmental
agency or body applicable to the Company or any Subsidiary or any
of their respective properties. No consent, approval, authorization
or other order of any court, regulatory body, administrative agency
or other governmental agency or body is required for the execution
and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement, except for compliance
with the Blue Sky laws and federal securities laws applicable to
the offering of the Shares. For the purposes of this Agreement the
term “Material Adverse Effect” shall mean a material
adverse effect on the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole;
provided that a “Material Adverse Effect” shall not be
deemed to include any effects to the extent resulting from (i)
changes in accounting principles generally accepted in the United
States or regulatory accounting requirements applicable to banks or
their holding companies generally, (ii) changes in laws, rules or
regulations of general applicability or interpretations thereof,
(iii) changes in general economic or market conditions in the
United States or in the regions in which the Company and/or its
Subsidiaries operate or conduct business or general changes in the
industries in which the Company and/or its Subsidiaries
participate, (iv) the announcement or disclosure of the sale of the
Shares or other transactions contemplated by this Agreement or (v)
effects caused by any event, occurrence or condition resulting from
or relating to the taking of any action in accordance with this
Agreement.
(n)
No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in material violation of its charter or by-laws
or similar organizational documents; (ii) in default, 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 of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, 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.
(o)
Deposit Accounts . The deposit accounts of the
Company’s banking subsidiary are insured up to the maximum
amount provided by the FDIC and no proceedings for the
modification, termination or revocation of any such insurance are
pending or threatened.
(p)
No Actions . Except as
disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal or governmental
actions, suits or proceedings pending or, to the Company’s
knowledge, threatened against the Company or any Subsidiary before
or by any court, regulatory body or administrative agency or any
other governmental agency or body, domestic, or foreign, which
actions, suits or proceedings, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect; and
no labor disturbance by the employees of the Company exists or, to
the Company’s knowledge, is imminent, that would reasonably
be expected to have a Material Adverse Effect.
(q)
No Restrictions on Subsidiaries . No Subsidiary of the
Company is currently prohibited, directly or indirectly, under any
order of the Board of Governors of the Federal Reserve System (the
“Federal Reserve Board”) (other than orders applicable
to bank holding companies and their subsidiaries generally), or any
agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from
repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such
Subsidiary’s properties or assets to the Company or any other
Subsidiary of the Company.
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(r)
Properties . The Company
and each Subsidiary has valid title to all the properties and
assets described as owned by it in the consolidated financial
statements included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, free and clear of all liens, mortgages, pledges, or
encumbrances of any kind except (i) those, if any, reflected in
such consolidated financial statements or as disclosed in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, or (ii) those that would not reasonably be expected to
have a Material Adverse Effect. The Company and each Subsidiary
holds its material leased properties under valid and binding
leases. The Company and any Subsidiary owns or leases all such
material properties as are necessary to its operations as now
conducted.
(s)
No Material Adverse Change. Since the date of the most
recent financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any material change in the
capital stock (other than the issuance of shares of Common Stock
upon exercise of stock options and warrants and the conversion of
convertible securities described as outstanding in, and the grant
of options and awards under existing equity incentive plans
described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus), short-term debt or long-term debt of
the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material
adverse change in or affecting the business, properties,
management, financial condition, stockholders’ equity,
results of operations or business prospects of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of
its subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that is
material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries taken as a whole,
other than in the ordinary course of business; and (iii) neither
the Company nor any of its subsidiaries has sustained any loss or
interference with its business that is material to the Company and
its subsidiaries taken as a whole and that is either from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(t)
Intellectual Property . The Company owns, is licensed
or otherwise possesses all rights to use, all patents, patent
rights, inventions, know-how (including trade secrets and other
unpatented or unpatentable or confidential information, systems, or
procedures), trademarks, service marks, trade names, copyrights and
other intellectual property rights (collectively, the
“Intellectual Property”) necessary for the conduct of
its business as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except as would not
reasonably be expected to have a Material Adverse Effect. No claims
have been asserted against the Company by any person with respect
to the use of any such Intellectual Property or challenging or
questioning the validity or effectiveness of any such Intellectual
Property except as would not reasonably be expected to have a
Material Adverse Effect.
(u)
Compliance . None of the
Company nor its Subsidiaries has been advised, nor do any of them
have any reason to believe, that it is not conducting business in
compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal
environmental laws and regulations, except where failure to be so
in compliance would not have a Material Adverse Effect.
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(v)
Business with Cuba . The Company has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198,
Laws of Florida), relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(w)
Taxes . The Company
and each Subsidiary has filed on a timely basis (giving effect to
extensions) all required federal, state and foreign income and
franchise tax returns and has paid or accrued all taxes shown as
due thereon, and none of the Company or any subsidiary has
knowledge of a tax deficiency that has been or might be asserted or
threatened against it, in each case, that could have a Material
Adverse Effect. All tax liabilities accrued through the date hereof
have been adequately provided for on the books of the
Company.
(x)
Transfer Taxes . On the Closing Date, all stock
transfer or other taxes (other than income taxes) that are required
to be paid in connection with the sale and transfer of the Shares
to be sold to the Purchaser hereunder will have been, fully paid or
provided for by the Company and all laws imposing such taxes will
have been fully complied with.
(y)
Investment Company . The Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(z)
Offering Materials . Each of the Company, its
directors and officers has not distributed and will not, without
the consent of the Underwriter, distribute prior to the later of
the Closing Date and the completion of the Underwriter’s
distribution of the Shares any offering material, including any
“free writing prospectus” (as defined in Rule 405
promulgated under the Securities Act), in connection with the
offering and sale of the Shares other than any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Pricing
Disclosure Package and the Prospectus or any amendment or
supplement thereto.
(aa)
Insurance . The Company
maintains insurance underwritten by insurers of recognized
financial responsibility, of the types and in the amounts that the
Company reasonably believes is adequate for its business,
including, but not limited to, insurance covering real and personal
property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily
insured against, with such deductibles as are customary for
companies in the same or similar business, all of which insurance
is in full force and effect.
(bb)
Price of Common Stock . The Company has not taken, and
will not take, directly or indirectly, any action designed to cause
or result in, or that has constituted or that would reasonably be
expected to constitute, the stabilization or manipulation of the
price of shares of Common Stock to facilitate the sale of the
Shares.
(cc)
Use of Proceeds . The Company shall use the proceeds
from the sale of the Shares as described under “Use of
Proceeds” in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(dd)
Related Party Transactions . No transaction has
occurred between or among the Company, on the one hand, and its
affiliates, officers or directors on the other hand, that is
required to have been described under applicable securities laws in
its Exchange Act filings and is not so described in such
filings.
(ee)
Off-Balance Sheet Arrangements . There is no
transaction, arrangement or other relationship between the Company
and an unconsolidated or other off-balance sheet entity that
is
9
required to be disclosed by the Company in its
Exchange Act filings and is not so disclosed or that otherwise
would be reasonably likely to have a Material Adverse
Effect.
(ff)
Governmental Permits, Etc . The Company and each
Subsidiary has all franchises, licenses, certificates and other
authorizations from such federal, state or local government or
governmental agency, department or body that are currently
necessary for the operation of the business of the Company as
currently conducted, except where the failure to possess currently
such franchises, licenses, certificates and other authorizations is
not reasonably expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
permit that, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse
Effect.
(gg)
Financial Statements . The financial statements of the
Company and its consolidated subsidiaries and the related notes and
schedules thereto included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act and fairly
present the financial position, results of operations,
stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries at the dates and for the periods
specified therein. Such financial statements and the related notes
and schedules thereto have been prepared in accordance with
accounting principles generally accepted in the United States
consistently applied throughout the periods involved (except as
otherwise noted therein) and all adjustments necessary for a fair
presentation of results for such periods have been made; provided,
however, that the unaudited financial statements are subject to
normal year-end audit adjustments (which are not expected to be
material) and do not contain all footnotes required under generally
accepted accounting principles.
(hh)
Listing Compliance . The Company is in compliance with
the requirements of the Nasdaq Global Select Market
(“Nasdaq”) for continued quotation of the Common Stock
thereon. The Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common
Stock under the Exchange Act or the quotation of the Common Stock
on Nasdaq, nor has the Company received any notification that the
Commission or Nasdaq is contemplating terminating such registration
or quotation. The transactions contemplated by this Agreement will
not contravene the rules and regulations of Nasdaq. The Company
will comply with all requirements of Nasdaq with respect to the
issuance of the Shares.
(ii)
Internal Accounting Controls . The Company maintains a
system of “internal control
