Gaylord Entertainment
Company
Deutsche Bank
Securities Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Wells Fargo Securities, LLC
As
Representatives of the
Several Underwriters
c/o Deutsche
Bank Securities Inc.
60 Wall Street, 4 th Floor
New York, New York 10005
Gaylord
Entertainment Company, a Delaware corporation (the
“Company”), proposes to sell to the several
underwriters (the “Underwriters”) named in
Schedule I hereto for whom you are acting as
representatives (the “Representatives”) an aggregate of
6,000,000 shares (the “Firm Shares”) of the
Company’s common stock, $0.01 par value (the “Common
Stock”). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their
names in Schedule I hereto. The Company also proposes
to sell at the Underwriters’ option an aggregate of up to
900,000 additional shares of the Company’s Common Stock (the
“Option Shares”) as set forth below.
As the
Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the number
of Firm Shares set forth opposite their respective names in
Schedule I , plus their pro rata portion of the
Option
1
Shares if you
elect to exercise the over-allotment option in whole or in part for
the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is
exercised) are herein collectively referred to as the
“Shares.” In accordance with that certain Amended and
Restated Rights Agreement, dated as of March 9, 2009 (the
“Rights Agreement”), by and between the Company and
Computershare Trust Company, N.A., as rights agent, each
outstanding share of Common Stock of the Company is accompanied by
one preferred share purchase right (a “Right”); each
Right representing the right to purchase one one-hundredth of a
share of Series A Junior Participating Preferred Stock of the
Company upon the terms and subject to the conditions set forth in
the Rights Agreement. Until the Distribution Date (as defined in
the Rights Agreement), the Rights trade with, and will be
inseparable from, the Common Stock. Each Share issued and sold by
the Company pursuant to this Agreement shall be issued together
with a Right. In this Agreement, the terms “Firm
Shares,” “Option Shares,” “Shares”
and “Common Stock” shall be deemed to include the Right
which accompanies each share of Common Stock.
Concurrent with
the offering and sale of the Shares by the Company pursuant to the
terms of this Agreement, the Company is offering to sell (i)
$300,000,000 in aggregate principal amount (or up to $360,000,000
in aggregate principal amount if the underwriters exercise the
over-allotment option in full) of 3.75% Convertible Senior Notes
due 2014 (the “ Convertible Notes ”), pursuant
to the terms of a purchase agreement, dated of even date herewith
between the Company and certain of the Underwriters in their
capacity as initial purchasers thereunder.
In consideration
of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the
Company .
The
Company represents and warrants to each of the Underwriters as
follows:
(a)
Registration Statement. A shelf registration statement on
Form S-3 (File No. 333-159052) in respect of the Shares,
including a form of prospectus (the “Base Prospectus”),
has been prepared and filed by the Company and has been declared
effective in conformity with the requirements of the Securities Act
of 1933, as amended (the “Act”) and the rules and
regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”)
thereunder. The Company and the transactions contemplated by this
Agreement meet the requirements and comply with the conditions for
the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the Base Prospectus, as
supplemented by any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Shares filed
with the Commission pursuant to Rule 424(b) under the Act, and
including the documents incorporated in the Base Prospectus by
reference (a “Preliminary Prospectus”), and the
exhibits, financial statements and schedules to such registration
statement, in each case as finally amended and revised, have
heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the
Company pursuant to Rules 413(b) and 462(f) under the Act, is
herein referred to as the “Registration Statement,”
which shall be deemed to include all information omitted therefrom
in reliance upon Rules 430A, 430B or 430C under the Act and
contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this
2
Agreement.
“Prospectus” means the form of prospectus relating to
the Shares first filed with the Commission pursuant to and within
the time limits described in Rule 424(b) under the Act and in
accordance with Section 4(a) hereof. Any reference herein to the
Registration Statement, any Preliminary Prospectus or to the
Prospectus or to any amendment or supplement to any of the
foregoing documents shall be deemed to refer to and include any
documents incorporated by reference therein, and, also shall be
deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule
424(b) under the Act, and prior to the termination of the offering
of the Shares by the Underwriters.
(b)
General Disclosure Package . As of the Applicable Time (as
defined below) and as of the Closing Date or the Option Closing
Date, as the case may be, neither (i) the General Use Free
Writing Prospectus (as defined below) issued at or prior to the
Applicable Time, the Statutory Prospectus (as defined below) and
the information included on Schedule II hereto, all
considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free
Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included or will include any
untrue statement of a material fact or omitted or will 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 information
contained in or omitted from any Issuer Free Writing Prospectus, in
reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through
the Representatives, specifically for use therein, it being
understood and agreed that the only such information is that
described in Section 13 herein. As used in this subsection and
elsewhere in this Agreement:
“Applicable
Time” means 8:00 am (New York time) on September 24,
2009 or such other time as agreed to in writing by the Company and
the Representatives.
“Statutory
Prospectus” means the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time, including
any document incorporated by reference therein and any prospectus
supplements deemed to be a part thereof.
“Issuer
Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Act,
relating to the Shares in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g)
under the Act.
“General
Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is identified on Schedule II
hereto.
“Limited
Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
(c)
Registration Statement and Prospectus . The Commission has
not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus relating to the proposed offering of the Shares, and
no
3
proceeding for
that purpose or pursuant to Section 8A of the Act has been
instituted or, to the Company’s knowledge, threatened by the
Commission. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission and the
Company has not received notice after due inquiry of any proceeding
for that purpose that has been initiated or threatened by the
Commission. As of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement
complied and will comply in all material respects with the Act and
the Rules and Regulations 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 to make the
statements therein not misleading. The documents incorporated, or
to be incorporated, by reference in the Prospectus, at the time
filed with the Commission complied and will comply in all material
respects to the requirements of the Securities Exchange Act of 1934
(“Exchange Act”) or the Act, as applicable, and the
rules and regulations of the Commission thereunder. The Prospectus
and any amendments and supplements thereto as of their respective
dates, the Closing Date and, if applicable, the Option Closing
Date, do not and will not contain any untrue statement of a
material fact and do not and will not 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 information contained in or
omitted from the Registration Statement or the Prospectus, or any
such amendment or supplement, in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf
of any Underwriter through the Representatives, specifically for
use therein, it being understood and agreed that the only such
information is that described in Section 13 herein.
(d)
Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares
did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any document incorporated by reference and any Prospectus
Supplement deemed to be a part thereof that has not been superseded
or modified; provided , however , that the Company
makes no representations or warranties as to information contained
in or omitted from any Issuer Free Writing Prospectus in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein, it being understood
and agreed that the only such information is that described in
Section 13 herein.
(e)
Offering Materials. The Company has not, directly or
indirectly, distributed and will not distribute any offering
material in connection with the offering and sale of the Shares
other than any Preliminary Prospectus, the Prospectus and other
materials, if any, permitted under the Act and consistent with
Section 4(b) below. If required, the Company will file with the
Commission all Issuer Free Writing Prospectuses in the time and
manner required under Rules 163(b)(2) and 433(d) under the
Act.
(f) [Intentionally
left blank.]
(g)
Not an Ineligible Issuer. (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) under the Act) of the Shares and
(ii) as of the date hereof
4
(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 under the Act, without
taking into account any determination by the Commission pursuant to
Rule 405 under the Act that it is not necessary that the
Company be considered an ineligible issuer), including, without
limitation, for purposes of Rules 164 and 433 under the Act
with respect to the offering of the Shares as contemplated by the
Registration Statement.
(h)
Financial Statements. The historical financial statements of
the Company and its consolidated subsidiaries and the related notes
thereto, as amended or superseded as of the date hereof, included
or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly in all
material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles as applied in the United
States applied on a consistent basis throughout the periods
involved (except as otherwise disclosed therein).
The
summary historical consolidated financial data and the information
under the heading “Capitalization” included in the
Registration Statement, the General Disclosure Package and the
Prospectus are presented on a basis consistent with that of the
audited financial statements included or incorporated by reference
in the Registration Statement, the General Disclosure Package and
the Prospectus.
(i)
No Material Adverse Change. Except as otherwise disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement, the General
Disclosure Package and the Prospectus: (i) there has been no
material adverse change, or any development that could reasonably
be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is referred
to herein as a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(j)
Organization and Good Standing. Each of the Company and its
subsidiaries listed on Schedule III hereto has been duly
incorporated or organized and is validly existing as a corporation,
limited liability company, limited partnership or general
partnership and is in good standing under the laws of the
jurisdiction of its incorporation or organization and has corporate
or other power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus and, in the case of the Company, to enter into and
perform its obligations, as the case may be, under this
Agreement.
5
Each
of the Company and its subsidiaries is duly qualified to transact
business as a foreign corporation, limited liability company or
partnership, as applicable, 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 for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued
and outstanding capital stock or partnership or other ownership
interests of each subsidiary of the Company has been duly
authorized and validly issued, is fully paid and nonassessable (to
the extent such concepts are relevant with respect to such
ownership interests) and is owned by the Company directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim except as set forth in
the Registration Statement, the General Disclosure Package and the
Prospectus or on Schedule III hereto. The Company does not
own a majority interest in or otherwise control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed on Schedule III
hereto.
(k)
Authorized Capital. The authorized share capital of the
Company consists of 150,000,000 shares of Common Stock with
associated Series A Junior Participating Preferred Stock
purchase rights, and 100,000,000 shares of preferred stock, $0.01
par value, of which (except for subsequent issuances, if any,
pursuant the Company’s stock option plans described in the
General Disclosure Package and the Prospectus) 40,979,510 shares of
Common Stock are outstanding and no shares of Preferred Stock are
outstanding; all the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are not subject to any
pre-emptive or similar rights under Delaware law; except as
described in or expressly contemplated by the General Disclosure
Package and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire from the Company, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company or, except as set forth on
Schedule IV hereto, in any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind to which the Company or any of its subsidiaries is a party
relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its
terms, except as rights to indemnification hereunder may be limited
by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors generally or by general equitable
principles.
(m)
No Violation or Default. Except with respect to claims
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, neither the Company nor any of its
subsidiaries is (i) in violation of its charter, by-laws or
other constitutive document, or (ii) is in default (or, with
the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, mortgage, loan or
credit agreement, note, contract, franchise,
6
lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound (including,
without limitation, the agreements listed in Schedule V
hereto), or to which any of the property or assets of the Company
or any of their respective subsidiaries is subject (each, an
“Existing Instrument”), 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, result in a Material Adverse Change.
(n)
No Conflicts. The Company’s execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and thereby and by the Registration Statement,
the General Disclosure Package and the Prospectus (i) have
been duly authorized by all necessary corporate or other action and
will not result in any violation of the provisions of the charter,
by-laws or other constitutive document of the Company or any of its
subsidiaries, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, except for
such conflicts, breaches, Defaults, liens, charges or encumbrances
as would not, individually or in the aggregate, result in a
Material Adverse Change, and (iii) assuming the accuracy of
the representations, warranties and covenants of the Underwriters
herein, will not result in any violation of any law, administrative
regulation or administrative or court decree applicable to the
Company or any of its subsidiaries. As used herein, a “Debt
Repayment Triggering Event” means any event or condition
which gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its
subsidiaries.
(o)
No Consents Required. No consent, approval, authorization or
other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency, is required for the
Company’s execution, delivery and performance of this
Agreement, or consummation on the part of the Company of the
transactions contemplated hereby and by the Registration Statement,
the General Disclosure Package and the Prospectus, except such as
have been obtained or made or will be obtained or made by the
Company and are, or will be, in full force and effect under the
Act, applicable state securities or blue sky laws.
(p)
Legal Proceedings. Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company’s
knowledge, threatened (i) against or involving the Company or
any of its subsidiaries, or (ii) which has as the subject
thereof any property owned or leased by the Company or any of its
subsidiaries, and which action, suit or proceeding, if determined
adversely to the Company, or any of its subsidiaries, as the case
may be, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement.
(q)
Independent Accountants. Ernst & Young LLP, who have
expressed their opinion with respect to the Company’s
financial statements (which term as used in this
7
Agreement
includes the related notes thereto) and supporting schedules filed
with the Commission included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus are independent public or certified public accountants
within the meaning of Regulation S-X under the Act and the
Exchange Act.
(r)
Title to Real and Personal Property. Except as otherwise
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company and each of its
subsidiaries has good and valid title to all the properties and
assets reflected as owned in the financial statements referred to
in Section 1(h) above (or elsewhere in the Registration Statement,
the General Disclosure Package and the Prospectus), in each case
free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except as
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus or on Schedule III hereto or such
as do not materially and adversely affect the value of such
property and do not materially interfere with the use made or
proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal
property held under lease by the Company or any subsidiary are held
under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or
proposed to be made of such real property, improvements, equipment
or personal property by the Company or such subsidiary.
(s)
Title to Intellectual Property. Except as otherwise
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company and its subsidiaries own or
possess sufficient trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar
rights (collectively, “Intellectual Property Rights”)
reasonably necessary to conduct their businesses as now conducted,
except where the failure to own or possess such rights would not
reasonably be expected to result in a Material Adverse Change; and
the expected expiration of any of such Intellectual Property Rights
would not result in a Material Adverse Change. Neither the Company
nor any of its subsidiaries has received any notice of infringement
or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable
decision, would reasonably be expected to result in a Material
Adverse Change.
(t)
No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Act to be
described in the Registration Statement and the Prospectus and that
is not so described in such documents and in the General Disclosure
Package.
(u)
Investment Company Act. The Company has been advised of the
rules and requirements under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”). The Company
is not an “investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act.
(v)
Taxes. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid
all taxes required to be paid by any of them and, if due and
payable, any related or
8
similar
assessment, fine or penalty levied against any of them except as
may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in
Section 1(h) above in respect of all material federal, state and
foreign income and franchise taxes for all periods as to which the
tax liability of the Company or any of its subsidiaries has not
been finally determined.
(w)
Licenses and Permits. Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, the Company and each of its subsidiaries possess such
valid and current certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice
of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could result in a Material Adverse
Change.
(x)
No Labor Disputes. Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, no material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the
Company’s knowledge, is threatened or imminent.
(y)
Compliance With Environmental Laws. Except as otherwise
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus or as would not, individually or in the
aggregate, result in a Material Adverse Change: (i) neither
the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to
pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products
(collectively, “Materials of Environmental Concern”),
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively,
“Environmental Laws”), which violation includes, but is
not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the
business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received
any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no
investigation with respect to which the Company has received
written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup
costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or
penalties arising out of, based on or resulting from the presence,
or release into the environment, of any Material of Environmental
Concern at any location owned, leased or operated by the Company or
any of its subsidiaries, now or in the past (collectively,
“Environmental Claims”), pending or, to the best of the
Company’s knowledge, threatened against the Company or any of
its subsidiaries or any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has
retained or assumed either
9
contractually
or by operation of law; and (iii) to the best of the
Company’s knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that
reasonably could result in a violation of any Environmental Law or
form the basis of a potential Environmental Claim against the
Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of
its subsidiaries has retained or assumed either contractually or by
operation of law.
(z)
Periodic Review of Costs of Environmental Compliance. From
time to time, in the ordinary course of its business, the Company
conducts a review of 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). On the
basis of such review and the amount of its established reserves,
the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in
a Material Adverse Change, except to the extent otherwise disclosed
in the Registration Statement and the Prospectus.
(aa)
Compliance With ERISA. Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, the Company and its subsidiaries and any
“employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
“ERISA”)) established or maintained by the Company, its
subsidiaries or its “ERISA Affiliates” (as defined
below) are in compliance in all material respects with ERISA.
“ERISA Affiliate” means, with respect to the Company or
any of its subsidiaries, any member of any group of organizations
described in Section 414 of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations
thereunder (the “Code”) of which the Company or any of
its subsidiaries is a member. No “reportable event” (as
defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan”
established or maintained by the Company, its subsidiaries or any
of its ERISA Affiliates. Except as disclosed in the General
Disclosure Package or the Prospectus, no “employee benefit
plan” established or maintained by the Company, its
subsidiaries or any of its ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA) that would be material to the Company, its
subsidiaries or any of its ERISA Affiliates. Neither the Company,
its subsidiaries nor any of its ERISA Affiliates has incurred or
reasonably expects to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of its ERISA Affiliates that
is intended to be qualified under Section 401 of the Code is
so qualified and nothing has occurred, whether by action or failure
to act, which would cause the loss of such
qualification.
(bb)
Accounting Controls. The Company maintains a system of
internal controls over financial reporting that is sufficient to
provide reasonable assurances that: (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii)
10
transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain
accountability for assets; (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 existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(cc)
Insurance. Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the
Company and its subsidiaries are self-insured or are insured by
recognized, and to our knowledge, financially sound institutions
with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary
for their businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company
and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. The Company has no reason to believe
that it or any subsidiary will not be able to (i) renew its
existing insurance coverage as and when such policies expire or
(ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse
Change. Neither of the Company nor any of its subsidiaries has been
denied any insurance coverage which it has sought or for which it
has applied.
(dd)
No Unlawful Payments. Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries nor, to
the best of the Company’s knowledge, any employee or agent of
the Company or any of its subsidiaries, has made any contribution
or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character
necessary to be disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus in order to make the
statements therein not misleading.
(ee)
No Broker’s Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to
a valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the
Shares.
(ff)
No Registration Rights . No person has the right to require
the Company or any of its subsidiaries to register any securities
for sale under the Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Shares.
(gg)
No Stabilization. None of the Company or any of its
affiliates has taken or will take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(hh)
Sarbanes-Oxley Act . Except with respect to past non-timely
filings of reports required by Section 16 of the Exchange Act
by certain of the Company’s officers ad directors, the
Company and, to the best of its knowledge, its officers and
directors are in
11
compliance in
all material respects with applicable provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”) that are effective as of the date hereof.
(ii)
Stock Exchange Listing . The Company’s Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and is
listed on the New York Stock Exchange (the “NYSE”), and
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 delisting the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or
the NYSE is contemplating terminating such registration or
listing.
(jj)
Disclosure Controls and Procedures . The Company has
established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange
Act), which: (i) are designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s principal
executive officer and its principal financial officer by others
within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being
prepared, (ii) have been evaluated for effectiveness as of the
end of the period covered by the Company’s most recent annual
or quarterly report filed with the Commission, and (iii) are
effective in all material respects to perform the functions for
which they were established. Based on the evaluation of the
Company’s disclosure controls and procedures described above,
the Company is not aware of (a) any significant deficiency in
the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal
controls or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the Company’s internal controls. Since the most recent
evaluation of the Company’s disclosure controls and
procedures described above, there have been no significant changes
in internal controls or in other factors that could significantly
affect internal controls.
(kk)
No Outstanding Loans or Other Indebtedness . Except as
otherwise disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, there are no outstanding
loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by
the Company to or for the benefit of any of the officers or
directors of the Company.
(ll)
Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping
and reporting requirements and the money laundering statutes and
the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (c
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