EXHIBIT 10.2
DISTRIBUTION
AGREEMENT
September 9, 2009
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Cathay General Bancorp, a Delaware
corporation (the “ Company ”), confirms its
agreement with Deutsche Bank Securities Inc., as agent and/or
principal under any Terms Agreement (as defined in
Section 1(a) below) (“ you ” or “
DBSI ”), with respect to the issuance and sale from
time to time by the Company, in the manner and subject to the terms
and conditions described below (this “ Agreement
”), of Common Stock, $0.01 par value per share (the “
Common Stock ”), of the Company having an aggregate
Gross Sales Price (as defined in Section 2(b) below) of up to
$75,000,000 (the “ Maximum Amount ”) on the
terms set forth in Section 1 of this Agreement. Such shares
are hereinafter collectively referred to as the “
Shares ” and are described in the Prospectus referred
to below.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (No. 333-161591) (the
“ registration statement ”) for the registration
of the Shares and other securities of the Company, under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “ Act
”); and such registration statement sets forth the terms of
the offering, sale and plan of distribution of the Shares and
contains additional information concerning the Company and its
business. Except where the context otherwise requires, “
Registration Statement ,” as used herein, means the
registration statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of
the Act, as such section applies to DBSI, including (1) all
documents filed as a part thereof or incorporated or deemed to be
incorporated by reference therein and (2) any information
contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent
such information is deemed, pursuant to Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the
effective time. “ Basic Prospectus ” means the
prospectus dated September 9, 2009, filed as part of the
Registration Statement, including the documents incorporated by
reference therein as of the date of such prospectus; “
Prospectus Supplement ” means the most recent
prospectus supplement relating to the Shares, to be filed by the
Company with the Commission pursuant to Rule 424(b) under the Act
on or before the second business day after the date of its first
use in connection with a public offering or sale of Shares pursuant
hereto (or such earlier time as may be required under the Act), in
the form furnished by the Company to DBSI in connection with the
offering of the Shares; “ Prospectus ” means the
Prospectus Supplement (and any additional prospectus supplement
prepared in accordance with the provisions of Sections 4(b) or
4(g) of this Agreement and filed in accordance with the provisions
of Rule 424(b)) together with the Basic Prospectus attached to
or used with the Prospectus Supplement; and “ Permitted
Free Writing Prospectuses ” has the meaning set forth in
Section 3(b). Any reference herein
to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall, unless otherwise stated,
be deemed to refer to and include the documents, if any,
incorporated by reference, or deemed to be incorporated by
reference, therein (the “ Incorporated Documents
”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “ amend
,” “ amendment ” or “
supplement ” with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall, unless
stated otherwise, be deemed to refer to and include the filing of
any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively, the “
Exchange Act ”) on or after the initial effective date
of the Registration Statement, or the date of the Basic Prospectus,
the Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
The Company has also entered into a
distribution agreement (the “ Alternative Distribution
Agreement ”), dated as of even date herewith, with J.P.
Morgan Securities Inc. (an “ Alternative Agent ”
and together with DBSI, the “ Agents ”). The
aggregate Gross Sales Price of the Shares that may be sold pursuant
to this Agreement, any Terms Agreement, the Alternative
Distribution Agreement and any Alternative Terms Agreement shall
not exceed the Maximum Amount. This Agreement and the Alternative
Distribution Agreement are sometimes hereinafter referred to as the
“ Distribution Agreements .”
The Company and DBSI agree as
follows:
1. Issuance and Sale
.
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(a)
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Upon the basis
of the representations, warranties and agreements and subject to
the terms and conditions set forth herein, on any Exchange Business
Day (as defined below) selected by the Company, the Company and
DBSI shall enter into an agreement in accordance with
Section 2 hereof regarding the number of Shares to be placed
by DBSI and the manner in which and other terms upon which such
placement is to occur (each such transaction being referred to as
an “ Agency Transaction ”). The Company may also
offer to sell the Shares directly to DBSI, as principal, in which
event such parties shall enter into a separate agreement (each, a
“ Terms Agreement ”) in substantially the form
of Exhibit A hereto, relating to such sale in accordance with
Section 2(g) of this Agreement (each such transaction being
referred to as a “ Principal Transaction ”).
Whenever the Company determines to sell the Shares directly to an
Alternative Agent as principal, it will enter into a separate
agreement (each, an “ Alternative Terms Agreement
”) in substantially the form of Exhibit A to the Alternative
Distribution Agreements. As used herein, (i) the “
Term ” shall be the period commencing on the date
hereof and ending on the earliest of (x) the date on which the
Gross Sales Price of Shares issued and sold pursuant to the
Distribution Agreements, any Terms Agreements and any Alternative
Terms Agreements is equal to the Maximum Amount and (y) any
termination of this Agreement pursuant to Section 8,
(ii) an “ Exchange Business Day ” means any
day during the Term that is a trading day for the Exchange other
than a day on which trading on the Exchange is scheduled to close
prior to its regular weekday closing time, and (iii) “
Exchange ” means the NASDAQ Global Select
Market.
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(b)
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Subject to the
terms and conditions set forth below, the Company appoints DBSI as
agent in connection with the offer and sale of Shares in any Agency
Transactions entered into hereunder. DBSI will use commercially
reasonable efforts to sell such Shares in accordance with the terms
and conditions hereof and of the applicable Transaction Notice (as
defined below). Neither the Company nor DBSI shall have any
obligation to enter into an Agency Transaction. The Company shall
be obligated to issue and sell through the Agents, and the Agents
shall be obligated to use commercially reasonable efforts, as
provided herein and in the applicable Transaction Notice, to place
Shares issued by the Company only if and when a Transaction Notice
related to such an Agency Transaction has been delivered by DBSI
and accepted by the Company as provided in Section 2
below.
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(c)
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DBSI, as agent
in any Agency Transaction, hereby covenants and agrees not to make
any sales of the Shares on behalf of the Company, pursuant to this
Agreement, other than (A) by means of ordinary brokers’
transactions between members of the Exchange that qualify for
delivery of a Prospectus in accordance with Rule 153 under the Act
and meet the definition of an “ at the market offering
” under Rule 415(a)(4) under the Act (such transactions are
hereinafter referred to as “ At the Market Offerings
”) and (B) such other sales of the Shares on behalf of
the Company in its capacity as agent of the Company as shall be
agreed by the Company and DBSI in writing.
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(d)
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If Shares are
to be sold in an Agency Transaction in an At The Market Offering,
DBSI, will confirm in writing to the Company the number of Shares
sold on any Exchange Business Day and the related Gross Sales Price
and Net Sales Price (as each of such terms is defined in
Section 2(b) below) no later than the opening of trading on
the immediately following Exchange Business Day.
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(e)
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If the Company
shall default on its obligation to deliver Shares to DBSI pursuant
to the terms of any Agency Transaction or Terms Agreement, the
Company shall (i) indemnify and hold DBSI and its successors
and assigns harmless against any loss, claim or damage arising from
or as a result of such default by the Company and
(ii) notwithstanding any such default, pay to DBSI the
commission to which it would otherwise be entitled in connection
with such sale in accordance with Section 2(b)
below.
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(f)
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The Company
acknowledges and agrees that (i) there can be no assurance
that DBSI will be successful in selling the Shares, (ii) DBSI
shall incur no liability or obligation to the Company or any other
person or entity if it does not sell Shares for any reason other
than a failure by DBSI to use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable law and regulations to sell such Shares in accordance
with the terms of this Agreement, and (iii) DBSI shall be
under no obligation to purchase Shares on a principal basis
pursuant to this Agreement, except as may otherwise be specifically
agreed by DBSI and the Company in a Terms Agreement.
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2. Transaction Notices and Terms
Agreements .
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(a)
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The Company
may, from time to time during the Term, propose to DBSI that they
enter into an Agency Transaction to be executed on a specified
Exchange Business Day or over a specified period of Exchange
Business Days. If DBSI agrees to the terms of such proposed Agency
Transaction or if the Company and DBSI mutually agree to modified
terms for such proposed Agency Transaction, then DBSI shall
promptly send to the Company (by any means permissible under
Section 10 hereof) a notice, substantially in the form of
Exhibit B hereto (each, a “ Transaction Notice
”), confirming the agreed terms of such proposed Agency
Transaction. If the Company wishes such proposed Agency Transaction
to become a binding agreement between it and DBSI, the Company
shall promptly indicate its acceptance thereof by countersigning
and returning such Transaction Notice to DBSI or sending a written
notice to DBSI (by any means permissible under Section 10
hereof) indicating its acceptance. The terms reflected in a
Transaction Notice shall become binding on DBSI and the Company
only if accepted by the Company no later than the dates and times
specified in such Transaction Notice. Each Transaction Notice shall
specify, among other things:
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(i) the Exchange Business Day(s) on
which the Shares subject to such Agency Transaction are intended to
be sold (each, a “ Purchase Date ”);
(ii) the maximum number of Shares
that the Company intends to sell (the “ Specified Number
of Shares ”) on, or over the course of, such Purchase
Date(s), which shall be no less than 5% and no more than 25% of the
average daily trading volume (as defined in Rule 10b-18 of the
Exchange Act) in the Common Stock on the Exchange for the thirty
(30) Exchange Business Days preceding the date of delivery of
the Transaction Notice, or as otherwise agreed between the Company
and DBSI and documented in the relevant Transaction Notice;
and
(iii) the lowest price, if any, at
which the Company is willing to sell Shares on each such Purchase
Date or a formula pursuant to which such lowest price shall be
determined (each, a “ Floor Price ”).
A Transaction Notice shall not set
forth a Specified Number of Shares that, when added to the
aggregate number of Shares previously purchased and to be purchased
pursuant to pending Transaction Notices (if any) hereunder, any
Terms Agreement, an Alternative Distribution Agreement and any
Alternative Terms Agreement, results in a total Gross Sales Price
exceeding the Maximum Amount. Provided that DBSI confirms to the
Company the number of Shares sold in accordance with
Section 1(d) above, the Company shall have responsibility for
maintaining records with respect to the aggregate dollar amount of
Shares sold, or for otherwise monitoring the availability of Shares
for sale under the Registration Statement. In the event that more
than one Transaction Notice
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with respect to any Purchase Date(s)
is accepted by the Company, the latest executed Transaction Notice
shall govern any sales of Shares for the relevant Purchase Date(s),
except to the extent of any action occurring pursuant to a prior
accepted Transaction Notice and prior to the acceptance of such
latest Transaction Notice. The Company or DBSI may, upon notice to
the other party hereto by telephone (confirmed promptly by e-mail
or facsimile), suspend the offering of the Shares for any reason;
provided , however , that such suspension or
termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder
prior to the giving of such notice. Notwithstanding the foregoing,
if the terms of any Agency Transaction contemplate that Shares
shall be sold on more than one Purchase Date, then the Company and
DBSI shall mutually agree to such additional terms and conditions
as they deem reasonably necessary in respect of such multiple
Purchase Dates, and such additional terms and conditions shall be
set forth in the relevant Transaction Notice and be binding to the
same extent as any other terms contained therein.
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(b)
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The Purchase
Date in respect of the Shares deliverable pursuant to any
Transaction Notice shall be set forth in the Transaction Notice.
Except as otherwise agreed between the Company and the Agents, each
Agent’s commission shall be 2.00% of the actual sales price
of the Shares (the “ Gross Sales Price ”) sold
pursuant to this Agreement; provided , however , that
such commission shall not apply when DBSI acts as principal, in
which case such commission shall be set forth in the applicable
Terms Agreement. The Gross Sales Price less DBSI’s commission
is referred to herein at the “ Net Sales Price
.”
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(c)
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Payment of the
Net Sales Price for Shares sold by the Company on any Purchase Date
pursuant to a Transaction Notice shall be made to the Company by
federal funds wire transfer to the account of the Company, the
details of which are set forth on Schedule I hereto, against
delivery of such Shares to DBSI’s account, or an account of
DBSI’s designee, at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System (“ DWAC
”) or by such other means of delivery as may be agreed to by
the Company and DBSI. Such payment and delivery shall be made at or
about 10:00 a.m., (New York City time), on the third Exchange
Business Day (or such other day as may, from time to time, become
standard industry practice for settlement of such a securities
issuance or as agreed to by the Company and DBSI) following each
Purchase Date (each, an “ Agency Settlement Date
”). If the Company fails for any reason to make timely
delivery of such Shares after receiving payment for such Shares,
the Company shall indemnify DBSI and its successors and assigns and
hold them harmless from and against any loss, damage, expense,
liability or claim that DBSI may incur as a result of such
failure.
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(d)
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If, as provided in the related
Transaction Notice, a Floor Price has been agreed to by the parties
with respect to a Purchase Date, and DBSI thereafter determines and
notifies the Company that the Gross Sales Price for such Agency
Transaction would not be at least equal to such Floor Price, then
the Company shall not be obligated to
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issue and sell through DBSI, and
DBSI shall not place, the Shares proposed to be sold pursuant to
such Agency Transaction on such Purchase Date, unless the Company
otherwise agrees in writing.
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(e)
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If either party
has reason to believe that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act are not
satisfied with respect to the Shares, it shall promptly notify the
other party and sales of the Shares under this Agreement, any
Transaction Notice or any Terms Agreement shall be suspended until
that or other exemptive provisions have been satisfied in the
judgment of each party. On or prior to the delivery of a prospectus
that is required (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with the
offering or sale of the Shares, DBSI and the Company shall each
calculate the average daily trading volume (as defined under
“ ADTV ” by Rule 100 of Regulation M under the
Exchange Act) of the Common Stock based on market data provided by
Bloomberg L.P. or such other sources as agreed upon by DBSI and the
Company.
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(f)
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(i) If the
Company wishes to issue and sell the Shares pursuant to this
Agreement but other than as set forth in Section 2(a) of this
Agreement, it will notify DBSI of the proposed terms of the
Principal Transaction. If DBSI, acting as principal, wishes to
accept such proposed terms (which it may decline to do for any
reason in its sole discretion) or, following discussions with the
Company, wishes to accept amended terms, the Company and DBSI shall
enter into a Terms Agreement setting forth the terms of such
Principal Transaction.
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(ii) The terms set forth in a Terms
Agreement shall not be binding on the Company or DBSI, unless and
until the Company and DBSI have each executed such Terms Agreement
accepting all of the terms of such Terms Agreement. In the event of
a conflict between the terms of this Agreement and the terms of a
Terms Agreement, the terms of such Terms Agreement shall
control.
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(g)
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Each sale of
the Shares to DBSI in a Principal Transaction shall be made in
accordance with the terms of this Agreement and a Terms Agreement,
which shall provide for the sale of such Shares to, and the
purchase thereof by, DBSI. A Terms Agreement may also specify
certain provisions relating to the reoffering of such Shares by
DBSI. The commitment of DBSI to purchase the Shares pursuant to any
Terms Agreement shall be deemed to have been made on the basis of
the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions
herein set forth. Any such Terms Agreement shall specify the number
of the Shares to be purchased by DBSI pursuant thereto, the price
to be paid to the Company for such Shares, any provisions relating
to rights of, and default by, underwriters acting together with
DBSI in the reoffering of the Shares, and the time and date (each
such time and date being referred to herein as a “
Principal Settlement Date ”; and, together with any
Agency Settlement Date, a “ Settlement Date ”)
and place of delivery of and payment for such Shares. The Company
acknowledges and agrees that compensation in a Principal
Transaction shall be customary for similar transactions.
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(h)
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Without the
prior written consent of each of the Company and each of the
Agents, the Company shall not request the sale of any Shares that
would be sold, and DBSI need not make any sale of Shares,
(i) during any period in which the Company is, or could be
deemed to be, in possession of material non-public information,
(ii) the Company’s insider trading policy, as it exists
on the date of the Agreement, would prohibit the purchases or sales
of the Company’s Common Stock by its officers or directors;
provided that, unless otherwise agreed between the Company and
DBSI, for purposes of this clause (ii), such period shall be deemed
to end on the date on which the Company’s next subsequent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, is filed with the Commission or (iii) except as
provided in Section 2(i) below, at any time from and including
the date (each, an “ Announcement Date ”) on
which the Company shall issue a press release containing, or shall
otherwise publicly announce, its earnings, revenues or other
results of operations (each, an “ Earnings
Announcement ”) through and including the time that is 24
hours after the time that the Company files (a “ Filing
Time ”) a Quarterly Report on Form 10-Q or an Annual
Report on Form 10-K that includes consolidated financial statements
as of and for the same period or periods, as the case may be,
covered by such Earnings Announcement.
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(i)
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If the Company
wishes to offer, sell or deliver Shares at any time during the
period from and including an Announcement Date through and
including the time that is 24 hours after the corresponding Filing
Time, the Company shall (i) prepare and deliver to DBSI (with
a copy to counsel to DBSI) a Current Report on Form 8-K which shall
include substantially the same financial and related information as
was set forth in the relevant Earnings Announcement (other than any
earnings projections, similar forward-looking data and
officers’ quotations) (each, an “ Earnings 8-K
”), in form and substance reasonably satisfactory to DBSI,
(ii) provide DBSI with the officers’ certificate,
accountants’ letter and opinions and letters of counsel
called for by Sections (5)(a)(i) through (iv) hereof;
respectively, (iii) afford DBSI the opportunity to conduct a
due diligence review in accordance with Section 6(f) hereof
and (iv) file such Earnings 8-K with the Commission, then the
provisions of clause (iii) of Section 2(h) shall not be
applicable for the period from and after the time at which the
foregoing conditions shall have been satisfied (or, if later, the
time that is 24 hours after the time that the relevant Earnings
Announcement was first publicly released) through and including the
time that is 24 hours after the Filing Time of the relevant
Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the
case may be. For purposes of clarity, the parties hereto agree that
(A) the delivery of any officers’ certificate,
accountants’ letter and opinions and letters of counsel
pursuant to this Section 2(i) shall not relieve the Company
from any of its obligations under this Agreement with respect to
any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as
the case may be, including, without limitation, the obligation to
deliver officers’ certificates, accountants’ letters
and legal opinions and letters as provided in Section 6 hereof
and (B) this Section 2(i) shall in no way affect or limit
the operation of the provisions of clauses (i) and
(ii) of Section 2(h), which shall have independent
application.
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(j)
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The Company
agrees that any offer to sell, any solicitation of an offer to buy,
or any sales of Shares or any other equity security of the Company
by the Company shall only be effected by or through only one of
DBSI or an Alternative Agent on any single given day (subject to
the exceptions set forth in Section 4(n) below), but in no
event by more than one Agent, and the Company shall in no event
request that DBSI and an Alternative Agent sell Shares on the same
day; provided, however, that the foregoing limitation shall
only apply with respect to an Agency Transaction.
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3. Representations, Warranties
and Agreements of the Company . The Company represents and
warrants to, and agrees with, DBSI, on and as of (i) the date
hereof, (ii) each date on which the Company accepts a
Transaction Notice (the “ Time of Acceptance ”)
or executes and delivers a Terms Agreement, (iii) each Time of
Sale (as defined below), (iv) each Settlement Date and
(v) each Bring-Down Delivery Date (as defined in
Section 6(b)) (each such date listed in (i) through (v),
a “ Representation Date ”), as
follows:
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(a)
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There is no order preventing or
suspending the use of the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus, and, to the knowledge of the
Company, no proceeding for that purpose or pursuant to
Section 8A of the Act against the Company or related to the
offering has been initiated or threatened by the Commission; no
notice of objection of the Commission to the use of such
Registration Statement pursuant to Rule 401(g)(2) under the Act has
been received by the Company; the Registration Statement complied
when it initially became effective, complies as of the date hereof
and, as then amended or supplemented, as of each other
Representation Date will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Shares as contemplated
hereby have been satisfied; the Registration Statement meets, and
the offering and sale of the Shares as contemplated hereby complies
with, the requirements of Rule 415 under the Act (including,
without limitation, Rule 415(a)(5)); the Prospectus complied
or will comply, at the time it was or will be filed with the
Commission, and will comply, as then amended or supplemented, as of
each Representation Date (other than the date hereof), in all
material respects, with the requirements of the Act; the
Registration Statement did not, as of the time of its initial
effectiveness, and does not or will not, as then amended or
supplemented, as of each Representation Date, 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 not misleading; as of each Representation Date (other than
the date hereof), the Prospectus, as then amended or supplemented,
together with all of the then issued Permitted Free Writing
Prospectuses, if any, will not contain an 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,
however, that the Company makes no representation or warranty
with respect to any statement or omission in the
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Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus in reliance
upon and in conformity with information concerning any Agent and
furnished in writing by or on behalf of any Agent expressly for use
in the Registration Statement, the Prospectus or such Permitted
Free Writing Prospectus (it being understood that such information
consists solely of the information specified in Section 9(b)).
As used herein, “ Time of Sale ” means
(i) with respect to each offering of Shares pursuant to this
Agreement, the time of DBSI’s initial entry into contracts
with investors for the sale of such Shares and (ii) with
respect to each offering of Shares pursuant to any relevant Terms
Agreement, the time of sale of such Shares.
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(b)
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Prior to the
execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any of the Shares by means of any
“ prospectus ” (within the meaning of the Act)
or used any “ prospectus ” (within the meaning
of the Act) in connection with the offer or sale of the Shares, in
each case other than the Basic Prospectus. The Company represents
and agrees that, unless it obtains the prior consent of each Agent,
until the termination of this Agreement, it has not made and will
not make any offer relating to the Shares that would constitute an
“ issuer free writing prospectus ” (as defined
in Rule 433 under the Act) or that would otherwise constitute a
“ free writing prospectus ” (as defined in Rule
405 under the Act) other than any Permitted Free Writing Prospectus
made pursuant to this Agreement or any Terms Agreement. Any such
free writing prospectus relating to the Shares consented to by the
Agents is hereinafter referred to as a “ Permitted Free
Writing Prospectus ”. The Company represents that it has
complied and will comply in all material respects with the
requirements of Rule 433 under the Act applicable to any Permitted
Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. The
conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433 or
Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; the Company is not disqualified, by
reason of Rule 164(f) or (g) under the Act, from using, in
connection with the offer and sale of the Shares, “ free
writing prospectuses ” (as defined in Rule 405 under the
Act) pursuant to Rules 164 and 433 under the Act; the Company is
not an “ ineligible issuer ” (as defined in Rule
405 under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to the
offering of the Shares contemplated by the Registration
Statement.
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(c)
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The Incorporated Documents, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in 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 any
Permitted
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Free Writing Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
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(d)
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The financial
statements and the related notes thereto included or incorporated
by reference in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus comply in all material respects
with the applicable requirements of the Act and the Exchange Act,
as applicable, and present in all material respects the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; and 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 the supporting schedules to such financial statements
included or incorporated by reference in the Registration Statement
are, in all material respects fairly presented.
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(e)
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Except in each case as otherwise
disclosed in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus, since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties or assets
described or referred to in the Registrat
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