150,000,000 Shares of Common Stock,
$1.00 par value
J.P. Morgan
Securities Inc.
as
Representative of the several Underwriters
listed in Schedule 1 hereto
c/o J.P. Morgan
Securities Inc.
383 Madison
Avenue
New York, New York 10179
Synovus Financial
Corp., a Georgia corporation (the “Company”), proposes
to issue and sell to the several Underwriters listed in
Schedule 1 hereto (the “Underwriters”), for whom
you are acting as representative (the
“Representative”), an aggregate of 150,000,000 shares
of common stock, par value $1.00 per share, of the Company (the
“Underwritten Shares”) and, at the option of the
Underwriters, up to an additional 22,500,000 shares of common stock
of the Company (the “Option Shares”). The Underwritten
Shares and the Option Shares are herein referred to as the
“Shares.” The shares of common stock of the Company to
be outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock.”
The Company also
proposes, subject to the terms of this Agreement, the applicable
rules, regulations and interpretations of FINRA (as defined below)
and all other applicable laws, rules and regulations, that
2,500,000 of the Underwritten Shares (the “Directed
Shares”) shall be reserved for sale by the Underwriters to
certain officers, directors and other persons designated by the
Company (“Directed Share Purchasers”). To the extent
that sales of Directed Shares are not orally confirmed for purchase
by Directed Share Purchasers by 9:00 A.M., New York City time, on
the first trading day after the date of this Agreement, the
Directed Shares will be offered to the public as part of the
Offering.
The Company hereby
confirms its agreement with the several Underwriters 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. 333-156797), 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 information
set forth on Annex A, but excluding the information listed in
section c. thereto, the “Pricing Disclosure Package”):
a Preliminary Prospectus dated September 14, 2009 and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex A hereto.
“Applicable
Time” means 6:00 P.M., New York City time, on
September 16, 2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Company the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at
a price per share (the “Purchase Price”) of
$3.81.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters,
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, severally and not jointly, 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.
If any Option
Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Underwritten Shares set forth
opposite the name of such Underwriter in Schedule 1 hereto (or
such number increased as set forth in Section 10 hereof) bears
to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representative in its sole discretion shall make.
The Underwriters
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
Representative 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
2
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 Underwriters intend to make a public
offering of the Shares as soon after the effectiveness of this
Agreement as in the judgment of the Representative is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate
of an 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
Representative in the case of the Underwritten Shares, at the
offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New
York, NY 10017 at 10:00 A.M., New York City time, on
September 22, 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 Representative 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 Representative in the written
notice of the Underwriters’ 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 Representative for the respective accounts of the several
Underwriters of the Shares to be purchased on such date in such
names and in such denominations as the Representative shall request
in writing not later than two full business days prior to the
Closing Date or the Additional Closing Date, as the case may be,
with any 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 Representative shall otherwise
instruct. The certificates for the Shares will be made available
for inspection and packaging by the Representative 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.
(d) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Shares
contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each 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
3
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 relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly
for use in any Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any 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
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
such Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(c) Issuer Free
Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their 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 A hereto, each electronic road show and any other
written communications approved in writing in advance by the
Representative. 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 the Preliminary Prospectus
accompanying, or delivered prior to delivery 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 they were made, not
misleading; provided that the Company makes no
representation or 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 relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly
for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d)
Registration Statement and Prospectus. The Registration
Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities
Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective
4
amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act
has been received by the Company. No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission, and no proceeding for that purpose or pursuant to
Section 8A of the 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 relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
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 any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(e)
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 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 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.
(f) Financial
Statements. The financial statements (including the related
notes thereto) of the Company and its consolidated subsidiaries
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, as applicable, and present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
covered thereby, and any supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus has been derived from the accounting records of the
Company and its consolidated subsidiaries and presents fairly the
information shown thereby.
(g) No Material
Adverse Change. Since the date of the most recent financial
statements of the Company included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any change in the capital
stock (other than the issuance of shares of Common Stock upon
exercise of stock options
5
and warrants
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, or
any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial
position, stockholders’ equity, results of operations or
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; 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.
(h)
Organization and Good Standing. The Company and each of its
subsidiaries are incorporated and are validly existing and in good
standing under the laws of their respective jurisdictions of
organization and, in the case of each of The First National Bank of
Jasper, The National Bank of South Carolina and Synovus Trust
Company, are validly chartered as a national bank. The Company and
each of its subsidiaries are duly qualified to do business and are
in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where
the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate,
have a material adverse effect on the business, properties,
management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries
taken as a whole or on the performance by the Company of its
obligations under this Agreement (a “Material Adverse
Effect”). The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the
“BHCA”) and is a financial holding company pursuant to
Section 4(l) of the BHCA and meets the applicable requirements for
qualification as such. The Company does not own or control,
directly or indirectly, any corporation, association or other
entity other than the subsidiaries listed on Annex B.
(i)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus under the heading
“Capitalization”; 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; except as described in or
expressly contemplated by the Pricing Disclosure Package and the
Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding
or arrangement of any kind 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 Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary owned, directly or
6
indirectly, by
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation
plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company
Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New
York Stock Exchange and any other exchange on which Company
securities are traded, and (iv) each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the
Company or its subsidiaries or their results of operations or
prospects.
(k) Due
Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder; and all action required to be taken for the
due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions
contemplated hereby has been duly and validly taken.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(m) The
Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing
Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar
rights.
(n) No
Violation or Default. Neither the Company nor any of its
significant subsidiaries (as such term is defined in Rule 1-02
of Regulation S-X) (each a “Significant
Subsidiary” and, collectively, the “Significant
Subsidiaries”) is (i) in 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.
7
(o) No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares and
the consummation of the transactions contemplated by this Agreement
will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, 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, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
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 (i) and
(iii) above, for any such conflict, breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Consents
Required. No consent, approval, authorization, order, license,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated by this Agreement, except as required by
the New York Stock Exchange, for the registration of the Shares
under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may
be required by the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(q) Legal
Proceedings. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or
in the aggregate, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have a Material
Adverse Effect; to the knowledge of the Company, no such
investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and
(ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(r) Independent
Accountants . KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act.
(s) Title to
Real and Personal Property . The Company and its subsidiaries
have good and marketable title in fee simple (in the case of real
property) to, or have valid and
8
marketable
rights to lease or otherwise use, all items of real and personal
property and assets that are material to the respective businesses
of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of
title except those that (i) do not materially interfere with
the use made and proposed to be made of such property by the
Company and its subsidiaries or (ii) could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(t) Title to
Intellectual Property . The Company and its subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective
businesses as currently conducted, and the conduct of their
respective businesses will not conflict in any material respect
with any such rights of others. The Company and its subsidiaries
have not received any notice of any claim of infringement,
misappropriation or conflict with any such rights of others in
connection with its patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how,
which could reasonably be expected to result in a Material Adverse
Effect.
(u) 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 Securities Act
to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing
Disclosure Package.
(v) Investment
Company Act . The Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, the Company will not
be required to register as an “investment company” or
an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company
Act”).
(w) Taxes.
The Company and its subsidiaries have paid all federal, state,
local and foreign taxes and filed all tax returns required to be
paid or filed through the date hereof except with respect to any
taxes that are currently being contested in good faith or as would
not have, individually or in the aggregate, a Material Adverse
Effect; and except as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there
is no tax deficiency that has been, or could reasonably be expected
to be, asserted against the Company or any of its subsidiaries or
any of their respective properties or assets, except for tax
deficiencies that would not, individually or in the aggregate, have
a Material Adverse Effect.
(x) Licenses
and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by,
and have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a
Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such
license, certificate,
9
permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course, except where the failure to renew would not,
individually or in the aggregate, have a Material Adverse
Effect.
(y) No Labor
Disputes. No labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is contemplated or threatened, and the Company is
not aware of any existing or imminent labor disturbance by, or
dispute with, the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
except as would not have a Material Adverse Effect.
(z) Compliance
with and Liability under Environmental Laws. (i) The
Company and its subsidiaries (a) are, and at all prior times
were, in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, requirements,
decisions, judgments, decrees, orders and the common law relating
to pollution or the protection of the environment, natural
resources or human health or safety, including those relating to
the generation, storage, treatment, use, handling, transportation,
Release or threat of Release of Hazardous Materials (collectively,
“Environmental Laws”), (b) have received and are
in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses,
(c) have not received notice of any actual or potential
liability under or relating to, or actual or potential violation
of, any Environmental Laws, including for the investigation or
remediation of any Release or threat of Release of Hazardous
Materials, and have no knowledge of any event or condition that
would reasonably be expected to result in any such notice,
(d) are not conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to
any Environmental Law at any location, and (e) are not a party
to any order, decree or agreement that imposes any obligation or
liability under any Environmental Law, and (ii) there are no
costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries, except in the case of
each of (i) and (ii) above, for any such matter, as would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and (iii) except as described
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, (a) there are no proceedings that are pending,
or that are known to be contemplated, against the Company or any of
its subsidiaries under any Environmental Laws in which a
governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of
$100,000 or more will be imposed, (b) the Company and its
subsidiaries are not aware of any facts or issues regarding
compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws, including the Release or
threat of Release of Hazardous Materials, that could reasonably be
expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company and its
subsidiaries, and (c) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any
Environmental Laws.
(aa) Hazardous
Materials . There has been no storage, generation,
transportation, use, handling, treatment, Release or threat of
Release of Hazardous Materials by, relating to or caused by the
Company or any of its subsidiaries (or, to the knowledge of the
Company and its subsidiaries, any other entity (including any
predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned,
operated or leased by the Company or any of its subsidiaries, or
at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under
any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant,
10
contaminant,
compound, mixture, or constituent thereof, in any form or amount,
including petroleum (including crude oil or any fraction thereof)
and petroleum products, natural gas liquids, as
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