Exhibit 1.1
EXECUTION COPY
WASHINGTON FEDERAL, INC.
21,000,000 Shares of Common
Stock
Underwriting Agreement
September 15, 2009
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
Ladies and Gentlemen:
Washington Federal, Inc., a
Washington 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
21,000,000 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 3,150,000 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 hereby acknowledges
that, in connection with the proposed offering of the Shares, it
has requested McAdams Wright Ragen Inc. (“ McAdams
”) to administer a directed share program (the “
Directed Share Program ”) under which up to 1,000
Underwritten Shares to be purchased by the Underwriters (the
“ Reserved Shares ”), shall be reserved for sale
by J.P. Morgan at the initial public offering price to the
Company’s officers, directors, employees and consultants and
other persons having a relationship with the Company as designated
by the Company (the “ Directed Share Participants
”) as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the Financial
Industry Regulatory Authority (the “ FINRA ”)
and all other applicable laws, rules and regulations. The number of
Shares available for sale to the general public will be reduced to
the extent that Directed Share Participants purchase Reserved
Shares. The Underwriters may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on
the same basis as the other Shares being issued and sold hereunder.
The Company has supplied McAdams with the names, addresses and
telephone numbers of the individuals or other entities which the
Company has designated to be participants in the Directed Share
Program. It is understood that any number of those so designated to
participate in the Directed Share Program may decline to do
so.
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. 333-161897), 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, if applicable, 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 B, 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 B hereto.
“Applicable Time” means
5:30 P.M., New York City time, on September 15,
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 $13.81125.
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.
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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 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 Simpson Thacher &
Bartlett LLP, 425 Lexington Avenue, New York, New York 10017 at
10:00 A.M., New York City time, on September 21, 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 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.
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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 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 B
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 and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter
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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 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
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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 and warrants described as outstanding in,
the grant of options and awards under existing equity incentive
plans described in, and transactions under employee benefits plans
described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus), 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 (other than the declaration or
payment of quarterly dividends consistent with past practice), 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, or results of operations 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 have been
duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, 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, or 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
subsidiaries listed in Schedule 2 to this Agreement are the only
significant subsidiaries of the Company.
(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
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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 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 Nasdaq
Global Select Market 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 in all material respects 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 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
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the property or assets of the
Company or any of its subsidiaries is subject; or (iii) in
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(o) 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 for the registration of the Shares under
the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under
applicable Nasdaq listing rules and standards 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; no
such investigations, actions, suits or proceedings are threatened
or, to the knowledge of the Company, 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 .
Deloitte and Touche LLP, which has audited and issued a report with
respect to the consolidated 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.
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(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 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) 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.
(u) 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, 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”).
(v) Taxes. The Company and
its subsidiaries have paid all material federal, state, local and
foreign taxes and filed all tax returns required to be paid or
filed through the date hereof (after considering any applicable
extension); 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 that would,
individually or in the aggregate, have a Material Adverse
Effect.
(w) 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,
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.
(x) Compliance with ERISA.
(i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), for which the Company or
any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “Code”)) would
have any liability (each, a “Plan”) has been maintained
in compliance with its terms and the requirements of any
applicable
9
statutes, orders, rules and
regulations, including but not limited to ERISA and the Code,
except for noncompliance that could not reasonably be expected to
result in material liability to the Company or its subsidiaries;
(ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions effected
pursuant to a statutory or administrative exemption that could
reasonably be expected to result in a material liability to the
Company or its subsidiaries; (iii) for each Plan that is
subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA, the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA, as
applicable, has been satisfied (without taking into account any
waiver thereof or extension of any amortization period) and is
reasonably expected to be satisfied in the future (without taking
into account any waiver thereof or extension of any amortization
period); (iv) the fair market value of the assets of each Plan
exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan);
(v) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that either has resulted, or could reasonably be
expected to result, in material liability to the Company or its
subsidiaries; (vi) neither the Company nor any member of the
Controlled Group has incurred, nor reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the
Plan or premiums to the PBGC, in the ordinary course and without
default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of
ERISA); and (vii) there is no pending audit or investigation
by the Internal Revenue Service, the U.S. Department of Labor, the
Pension Benefit Guaranty Corporation or any other governmental
agency or any foreign regulatory agency with respect to any Plan
that could reasonably be expected to result in material liability
to the Company or its subsidiaries. None of the following events
has occurred or is reasonably likely to occur: (x) a material
increase in the aggregate amount of contributions required to be
made to all Plans by the Company or its subsidiaries in the current
fiscal year of the Company and its subsidiaries compared to the
amount of such contributions made in the Company and its
subsidiaries’ most recently completed fiscal year; or
(y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such
obligations in the Company and its subsidiaries’ most
recently completed fiscal year.
(y) Disclosure Controls . The
Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that complies with the
requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in
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,
including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding
required disclosure. The Company and its subsidiaries have carried
out evaluations of the effectiveness of their disclosure controls
and procedures as required by Rule 13a-15 of the
Exchange Act.
(z) Accounting Controls. The
Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the
supervision of, their respective principal executive and principal
financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary
10
to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (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 the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there
are no material weaknesses in the Company’s internal
controls. The Company’s auditors and the Audit Committee of
the Board of Directors of the Company have been advised of:
(i) all significant deficiencies and material weaknesses in
the design or operation of internal controls over financial
reporting which have adversely affected or are reasonably likely to
adversely affect the Company’s ability to record, process,
summarize and report financial information; and (ii) any
fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s
internal controls over financial reporting.
(aa) Insurance. The Company
and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are appropriate in the
judgment of management to protect the Company and its subsidiaries
and their respective businesses; and neither the Company nor any of
its subsidiaries has (i) received notice from any insurer or
agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to
continue such insurance or (ii) any reason to believe that it
will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to
continue its business.
(bb) No Unlawful Payments.
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
other person acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(cc) Compliance with Money
Laundering Laws . The operations of the Company and its
subsidiaries are conducted in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency, to the extent such statutes, rules, regulations or
guidelines are applicable to the operations of the Company and its
subsidiaries (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(dd) Compliance with OFAC.
None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury
(“OFAC”); and neither the Company nor any subsidiary of
the Company will, directly or indirectly, use the proceeds of the
offering of the Shares hereunder for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
11
(ee) No Restrictions on
Subsidiaries . No subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s properties or assets to
the Company or any other subsidiary of the Company.
(ff) 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.
(gg) 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
Securities Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Shares.
(hh) No Stabilization. The
Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
(ii) Margin Rules . The
application of the proceeds received by the Company from the
issuance, sale and delivery of the Shares as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus will not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(jj) Sarbanes-Oxley Act . The
Company is in compliance in all material respects with the
applicable provisions of the Sarbanes-Oxley Act of 2002.
(kk) Status under the Securities
Act . At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter
that the Company or any offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares and at the date hereof, the Company
was not and is not an “ineligible issuer,” and is a
well-known seasoned issuer, in each case as defined in Rule 405
unde
