Exhibit 1.1
4,193,550 Shares
First Financial Holdings,
Inc.
Common Stock
par value $.01 per
share
Underwriting
Agreement
September 23, 2009
Sandler O’Neill &
Partners, L.P.,
as Representative of the several
Underwriters
919 Third Avenue
6 th Floor
New York, New York 10022
Ladies and Gentlemen:
First Financial Holdings, Inc., a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to
Sandler O’Neill & Partners, L.P. (“Sandler
O’Neill” or an “Underwriter”) and each of
the other underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in
Section 11 hereof), for whom Sandler O’Neill is acting
as representative (in such capacity, the
“Representative”) with respect to (i) the sale by
the Company, and the purchase by the Underwriters, acting severally
and not jointly, of an aggregate of 4,193,550 shares of common
stock, par value $.01 per share, of the Company (the “Common
Stock”), as set forth in Schedule I hereto (the
“Firm Shares”) and (ii) the grant by the Company
to the Underwriters, acting severally and not jointly, of the
option described in Section 2 hereof to purchase all or any
part of 629,032 additional shares of Common Stock (the
“Optional Shares”) to cover over-allotments, if any
(the Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2 hereof being
collectively called the “Shares”).
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-154722) covering the
registration of the Shares under the Securities Act of 1933, as
amended (the “Act”), including a related prospectus,
which has become effective. The registration statement (including
the exhibits thereto and schedules thereto, if any) as amended at
the time it became effective, or, if a post-effective amendment has
been filed with respect thereto, as amended by such post-effective
amendment at the time of its effectiveness (including in each case
the information (if any) deemed to be part of such registration
statement at the time of effectiveness pursuant to Rule 430A under
the Act), is hereinafter referred to as the “Registration
Statement.” The term “Effective Date” shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective. The
term “Base Prospectus” shall mean the prospectus
referred to in Section 1(a)(i) hereof contained in the
Registration Statement at the Effective Date. “Preliminary
Prospectus” means any preliminary prospectus supplement to
the Base Prospectus used prior to the filing of the Prospectus,
together with the Base Prospectus; the term
“Prospectus” means the final prospectus supplement to
the Base Prospectus first filed with the Commission pursuant to
Rule 424(b) under the Act, together with the Base Prospectus. Any
registration statement filed pursuant to Rule 462(b) under the Act
is herein referred to as the “Rule 462(b) Registration
Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b)
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 Act, as of the Effective Date or the date of such
Preliminary Prospectus or the Prospectus, as the case may be (it
being understood that the several specific references in this
Agreement to documents incorporated by reference in the
Registration Statement or the Prospectus are for clarifying
purposes only and are not meant to limit the inclusiveness of any
other definition herein). For purposes of this Agreement, all
references to the Registration Statement, any Preliminary
Prospectus, or the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any Preliminary Prospectus
or the Prospectus, as the case may be.
1.(a) The Company represents and
warrants to, and agrees with, the Underwriters that:
(i) The Company satisfies the
registrant eligibility requirements for the use of Form S-3 under
the Act set forth in General Instruction I.A to such form and the
transactions contemplated by this Agreement satisfy the transaction
eligibility requirements for
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the use of such form set forth in General
Instruction I.B.1 to such form; the Company has filed with the
Commission the Registration Statement on such Form, including a
Base Prospectus, for registration under the Act of the offering and
sale of the Shares, and the Company may have filed with the
Commission one or more amendments to such Registration Statement,
each in the form previously delivered to the Underwriters. Such
Registration Statement, as so amended, has been declared effective
by the Commission, and the Shares have been registered under the
Registration Statement in compliance with the requirements for the
use of Form S-3. Although the Base Prospectus may not include all
the information with respect to the Shares and the offering thereof
required by the Act and the rules and regulations of the Commission
thereunder to be included in the Prospectus, the Base Prospectus
includes all such information required by the Act and the rules and
regulations of the Commission thereunder to be included therein as
of the Effective Date. The Company has complied to the
Commission’s satisfaction with all requests of the Commission
for additional or supplemental information; and no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or, to
the knowledge of the Company, threatened by the Commission. After
the execution of this Agreement, the Company will file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the Base Prospectus included in such Registration
Statement relating to the Shares and the offering thereof, with
such information as is required or permitted by the Act and as has
been provided to and approved by the Underwriters prior to the date
hereof or, to the extent not completed at the date hereof,
containing only such specific additional information and other
changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised the
Underwriters, prior to the date hereof, will be included or made
therein;
(ii) No order preventing or
suspending the use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representative expressly for use therein;
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
7:00 p.m. (Eastern Time) on September 23, 2009.
“General Disclosure
Package” means (i) the Preliminary Prospectus, if any,
used most recently prior to the Time of Delivery, (ii) the
Issuer-Represented Free Writing Prospectuses, if any, identified in
Schedule II hereto and (iii) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the General Disclosure
Package.
“Issuer-Represented Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
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Shares that (i) is required to be filed
with the Commission by the Company or (ii) is exempt from
filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Shares or of the offering that does not reflect
the final terms, in each case 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).
Each Issuer-Represented Free Writing
Prospectus, when considered together with the General Disclosure
Package as of the Applicable Time, did not contain any untrue
statement of material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading and, 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 therein and any preliminary or other
prospectus deemed to be a part thereof that, in each case, has not
been superseded or modified;
(iii) The Preliminary Prospectus,
the Prospectus and each Issuer-Represented Free Writing Prospectus
when filed, if filed by electronic transmission, pursuant to EDGAR
(except as may be permitted by Regulation S-T under the Act), was
identical to the copy thereof delivered to the Underwriters for use
in connection with the offer and sale of the Shares; the
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the Effective
Date, and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly
for use therein;
(iv) The documents which are
incorporated or deemed to be incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the
Prospectus or from which information is so incorporated by
reference (the “Exchange Act Reports”), when they
became effective or were filed with the Commission, as the case may
be (or, if an amendment with respect to any such documents was
filed or became effective, when such amendment was filed or became
effective), complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations of the
Commission thereunder, and, when read together with the other
information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued,
at the Applicable Time and at any Time of Delivery (as defined
below) did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make to the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(v) The financial statements,
including the related schedules and notes, filed with the
Commission as a part of the Registration Statement and included or
incorporated
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by reference in the Preliminary Prospectus and
the Prospectus (the “Financial Statements”) present
fairly the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified; such
Financial Statements, unless otherwise noted therein have been
prepared in conformity with generally accepted accounting
principles as applied in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved; no
other financial statements or supporting schedules are required to
be included in the Registration Statement, the Preliminary
Prospectus and the Prospectus; no government agency disputes
(1) the loan loss reserve amount, (2) the methodology
used to derive the loan loss reserve amount, or (3) the value
of its securities portfolio; the statement of income data, balance
sheet data and earnings per share data for the five fiscal years
ended September 30, 2008 as set forth in the Prospectus under
the caption “Summary of Selected Consolidated Financial
Information” fairly present the information therein on a
basis consistent with that of the audited financial statements
contained or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus; the
income statement data and earnings per share data for the nine
months ended June 30, 2009 and balance sheet data as of
June 30, 2009 as set forth in the Prospectus under the caption
“Summary of Selected Consolidated Financial
Information” fairly present the information therein on a
basis consistent with that of the unaudited financial statements
contained or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus; to the
extent applicable, all disclosures contained in the Prospectus
regarding “non-GAAP financial measures” as such term is
defined by the rules and regulations of the Commission comply with
Regulation G of the Exchange Act, the rules and regulations
promulgated by the Commission thereunder and Item 10 of
Regulation S-K under the Act;
(vi) Grant Thornton LLP and KPMG
LLP, the independent registered public accounting firms that
certified the financial statements of the Company and its
subsidiaries, that are included in or incorporated by reference
into the Registration Statement and the Prospectus are independent
registered public accounting firm as required by the Act and the
rules and regulations of the Commission thereunder, and to the
Company’s knowledge such accountants are not in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley Act”) and the related rules
and regulations of the Commission;
(vii) The statistical and market
related data contained or incorporated by reference in the
Prospectus and Registration Statement are based on or derived from
sources which the Company believes are reliable and
accurate;
(viii) This Agreement has been duly
executed and delivered by the Company and, when duly executed by
the Representative, will constitute the valid and binding agreement
of the Company enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors’ rights generally or
by general equitable principles and except as any indemnification
or contribution provisions thereof may be limited under applicable
securities laws;
(ix) Since the date of the latest
audited financial statements included or incorporated by reference
in the Registration Statement and the Prospectus, (A) neither
the Company nor any of its subsidiaries has sustained any material
loss or interference with its
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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 Prospectus; and there has
not been any material 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 actually known to the Company that may
reasonably be expected to cause a prospective material adverse
change, in or affecting the general affairs, management, earnings,
business, properties, assets, consolidated financial position,
business prospects, stockholders’ equity or results of
operations of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, and there has been no effect with respect to the Company
and its subsidiaries considered as one enterprise, which would
prevent, or be reasonably likely to prevent, the Company from
consummating the transaction contemplated by this Agreement (a
“Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus, and
(C) except for quarterly dividends on the Common Stock and the
Series A preferred stock issued to the U. S. Department of the
Treasury in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus;
(x) 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 mortgages, pledges,
security interests, claims, restrictions, liens, encumbrances and
defects except such as are described in the Registration Statement
and the Prospectus or would not 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 would not reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has any written,
or to the Company’s knowledge, oral notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning
the rights of the Company or any such subsidiary to the continued
possession of the leased or subleased premises under any such lease
or sublease that would reasonably be expected to result in a
Material Adverse Effect;
(xi) The Company is a registered
unitary savings and loan holding company under the Home
Owners’ Loan Act of 1933, as amended (the
“HOLA”). 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 the corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus and
to enter into and perform its obligations under this Agreement; the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse
Effect;
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(xii) Each subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation, limited liability company, partnership or bank in good
standing under the laws of the jurisdiction of its incorporation
and has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus and, in the case of First
Federal Savings and Loan Association of Charleston (“First
Federal”), to enter into and perform its obligations under
this Agreement; each subsidiary of the Company is duly qualified as
a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the
failure to so qualify, or be in good standing, would not,
individually or in the aggregate, result in a Material Adverse
Effect; all of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and is owned by the Company, directly or
through subsidiaries; the Company owns, directly or through
subsidiaries, the issued and outstanding capital stock of each
subsidiary free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim; the Company does not own or
control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to
the Company’s Annual Report on Form 10-K for the fiscal year
ended September 30, 2008; none of the outstanding shares of
capital stock or other equity interest of any subsidiary was issued
in violation of the preemptive or similar rights of any security
holder or equity holder of such subsidiary; the activities of the
subsidiaries of First Federal are permitted to subsidiaries of a
federally-chartered stock savings and loan association; and the
deposit accounts of First Federal are insured up to the applicable
limits by the Federal Deposit Insurance Corporation (the
“FDIC”) to the fullest extent permitted by law and the
rules and regulations of the FDIC;
(xiii) The Company has an authorized
capitalization as set forth in the Prospectus under the heading
“Capitalization”, 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 have been issued
in compliance with all applicable federal and state securities
laws; none of the outstanding shares of Stock were issued in
violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company; the description of the Company’s stock option, stock
bonus and other stock plans or arrangements and the options or
other rights granted thereunder, set forth or incorporated by
reference in the Prospectus, accurately and fairly presents, in all
material respects, the information required to be shown with
respect to such plans, arrangements, options and rights;
(xiv) 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
in all material respects to the description of the Common Stock
contained in the Registration Statement and the Prospectus and the
issuance of the shares is not subject to the preemptive or other
similar rights of any security holder of the Company;
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(xv) Except as described in the
Registration Statement and the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options
to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance
of, any shares of capital stock of or other equity interest in the
Company; and (B) there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a Registration
Statement under the Act or otherwise register any securities of the
Company owned or to be owned by such person;
(xvi) The issue and sale of the
Shares by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the
transactions herein contemplated have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or result in a Repayment
Event (as defined below) under, 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, nor will such action result in any violation of the
provisions of the articles of incorporation, certificate of
incorporation, articles of association, articles of organization,
or charter (as applicable) or bylaws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
federal, state, local or foreign court, arbitrator, regulatory
authority or governmental agency (each a “Governmental
Entity”) or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except for those
conflicts, breaches, violations, defaults or Repayment Events that
would not 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 is required for the issue and sale of
the Shares, the performance by the Company of its obligations
hereunder or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the
Act of the Shares and except as may be required under the rules and
regulations of the Nasdaq Global Select Market or the Financial
Industry Regulatory Authority (“FINRA”) and 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. As used herein, a “Repayment
Event” means any event or condition that gives 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 subsidiary;
(xvii) Neither the Company nor any
of its subsidiaries is in violation of its articles of
incorporation, certificate of incorporation, articles of
association, articles of organization, or charter (as applicable)
or bylaws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound or to which any of
the property or assets of the Company or any subsidiary is subject
except for such defaults that would not reasonably be expected to
result in a Material Adverse Effect;
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(xviii) The statements set forth in
the Prospectus under the caption “Description of Common Stock
and Preferred Stock,” insofar as they purport to constitute a
summary of the terms of the capital stock of the Company, and under
the caption “Underwriting,” insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and complete;
(xix) Except as disclosed in the
Registration Statement and the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in
compliance in all material respects with all federal, state, local
and foreign statutes, laws, rules, regulations, decisions,
directives and orders applicable to them (including, without
limitation, all regulations and orders of, or agreements with, the
Office of Thrift Supervision (the “OTS”), the FDIC, the
Vermont Department of Insurance, the South Carolina Department of
Insurance, the Equal Credit Opportunity Act, the Fair Housing Act,
the Community Reinvestment Act, the Home Mortgage Disclosure Act,
all other applicable fair lending laws or other laws relating to
discrimination, the Bank Secrecy Act, as amended by Title III of
the USA PATRIOT Act and the economic sanctions programs
administered by the Office of Foreign Assets Control under the
Trading with the Enemy Act, as amended, and the International
Emergency Economic Powers Act, as amended) except where the failure
to so comply would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any written, or to
the Company’s knowledge, oral communication from any
Governmental Entity asserting that the Company or any of its
subsidiaries is not in compliance with any statute, law, rule,
regulation, decision, directive or order in each case where the
failure to so comply would reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect; neither the
Company nor any subsidiary has been advised by the OTS or the FDIC
that it is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any order or
directive (other than orders or directives applicable to the
banking industry as a whole) or extraordinary supervisory agreement
letter, in each case where such order, directive or extraordinary
supervisory agreement letter would reasonably be expected to have a
Material Adverse Effect;
(xx) Except as disclosed in the
Registration Statement and the Prospectus, there are no legal or
governmental actions or suits, investigations, inquiries or
proceedings before or by any court or Government Entity, now
pending or, to the knowledge of the Company, threatened or
contemplated, to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject (A) that is required to be
disclosed in the Registration Statement by the Act or by the rules
and regulations of the Commission thereunder and not disclosed
therein or (B) which, if determined adversely to the Company
or any of its subsidiaries, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and there are no contracts or documents of the Company or
any of its subsidiaries which would be required to be described in
the Registration Statement or to be filed as exhibits thereto by
the Act or by the rules and regulations of the Commission
thereunder which have not been so described and filed;
(xxi) Each of the Company and its
subsidiaries possess all permits, licenses, approvals, consents and
other authorizations of (collectively,
“Governmental
9
Licenses”), and has made all filings,
applications and registrations with, all Governmental Entities to
permit the Company or such subsidiary to conduct the business now
operated by the Company or its subsidiaries except where the
failure to obtain such Governmental Licenses would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; the Company and its subsidiaries are
in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity
of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect 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 proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material
Adverse Effect;
(xxii) Except as described in the
Prospectus and except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation in any material respect of any federal, state or local
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, 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 the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, and (C) there are
no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its
subsidiaries;
(xxiii) The Company and each of its
subsidiaries own or possess adequate rights to use or can acquire
on reasonable terms ownership or rights to use all material
patents, patent applications, patent rights, licenses, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, know-how (including trade secrets and
other unpatented and/or unpatenable property or confidential
information, systems or procedures and excluding generally
commercially available “off the shelf” software
programs licensed pursuant to shrink wrap or “click and
accept” licenses) and licenses (collectively,
“Intellectual Property”) necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of infringement or conflict
with, any such rights of others or any facts or circumstances that
would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries
therein, except where such infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect;
10
(xxiv) No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required to be described
in the Registration Statement and the Prospectus by the Act or by
the rules and regulations of the Commission thereunder which has
not been so described;
(xxv) The Company is not and, after
giving effect to the offering and sale of the Shares and after
receipt of payment for the Shares and the application of such
proceeds as described in the Prospectus, will not be an
“investment company” or an entity
“controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(xxvi) There is and has been no
failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in
all material respects with any provision of the Sarbanes-Oxley Act
and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and
906 related to certifications;
(xxvii) Neither the Company nor any
of its subsidiaries, nor, to the knowledge of the Company, any
affiliates of the Company or its subsidiaries, has taken and will
not 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 the Common Stock to facilitate the
sale or resale of the Shares;
(xxviii) Neither the Company nor any
of its subsidiaries nor, to the Company’s knowledge, any
director, officer, employee or agent or other person associated
with or acting on behalf of the Company or any of its subsidiaries
has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is
in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(xxix) The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
Since the end of the Company’s most recent audited fiscal
year, there has been (x) no material weakness in the
Company’s internal control over financial
11
reporting (whether or not remediated) and
(y) 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;
(xxx) The Company has established
and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act),
which (A) are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms and 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 the Company and its subsidiaries to allow
timely decisions regarding disclosure, and (B) 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 (x) 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
(y) 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;
(xxxi) Neither the Company nor any
of its subsidiaries is subject or is party to, or has received any
notice or advice that any of them may become subject or party to
any investigation with respect to, any corrective, suspension or
cease-and-desist order, agreement, memorandum of understanding,
consent agreement or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment
letter or similar undertaking to, or is subject to any directive
by, or has been a recipient of any supervisory letter from, or has
adopted any board resolutions at the request of, any Governmental
Entity charged with the supervision or regulation of depository
institutions or engaged in the insurance of deposits (including the
FDIC) or the supervision or regulation of the Company or any of its
subsidiaries that currently relates to or restricts in any material
respect their business or their management (each, a
“Regulatory Agreement”), nor has the Company or any of
its subsidiaries been advised by any such Governmental Entity that
it is considering issuing or requesting any such Regulatory
Agreement; there is no unresolved violation, criticism or exception
by any such Governmental Entity with respect to any report or
statement relating to any examinations of the Company or any of its
subsidiaries which, in the reasonable judgment of the Company,
currently results in or is expected to result in a Material Adverse
Effect;
(xxxii) 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 their
“ERISA Affiliates” (as defined below), are in
compliance in all material respects with ERISA; “ERISA
Affiliate” means, with respect to the Company or a
subsidiary, any member of any group of organizations described in
Section 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations
12
thereunder (the “Code”) of which the
Company or such subsidiary 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 their ERISA Affiliates; no “employee
benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA); none of the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit
plan” or (B) Sections 412, 4971, 4975 or 4980B of the
Code; each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under
Section 401(a) of the Code has received a favorable
determination or approval letter from the Internal Revenue Service
regarding its qualification under such section and to the
Company’s knowledge nothing has occurred whether by action or
failure to act, which would cause the loss of such
qualification;
(xxxiii) The Company and its
subsidiaries, taken as a whole, are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in
which they are engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect; neither the Company nor any subsidiary
has been denied any insurance coverage which it has sought or for
which it has applied;
(xxxiv) Except as disclosed in the
Registration Statement and the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company, or the
Underwriter, for a brokerage commission, finder’s fee or
other like payment;
(xxxv) The Company and its
consolidated subsidiaries and its other subsidiaries have filed all
necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof, all such tax
returns are true, complete and correct and have paid all taxes
required to be paid by any of them except for any such tax
assessment, fine or penalty that is currently being contested in
good faith or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; the
Company has made adequate charges, accruals and reserves in the
applicable fin
