8.5% Senior Notes due
2019
JEFFERIES GROUP, INC.
(a Delaware corporation)
8.5% Senior Notes due
2019
Jefferies &
Company, Inc.
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
BNY Mellon Capital Markets, LLC
Banc of America Securities LLC
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Keefe, Bruyette & Woods, Inc.
c/o Citigroup
Global Markets Inc.
338 Greenwich Street
New York, New York 10013
c/o J.P. Morgan
Securities Inc.
270 Park Avenue, 8 th Floor
New York, New York 10017
Jefferies Group,
Inc., a Delaware corporation (the “Company”), confirms
its agreement with Citigroup Global Markets Inc., J.P. Morgan
Securities Inc. and each of the other Underwriters named in
Schedule A hereto (collectively, the
“Underwriters”, which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), for whom Jefferies & Company, Inc., Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc. are acting as
Representatives (in such capacity, the
“Representatives”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set
forth in said Schedule A of $400,000,000 aggregate principal
amount of the Company’s 8.5% Senior Notes due 2019 (the
“Notes”),” referred to herein as, the
“Securities”). The Securities are to be issued pursuant
to an Indenture dated as of March 12, 2002, as amended by the
First Supplemental Indenture dated as of July 15, 2003 (as so
amended, the “Indenture”), between the Company and The
Bank of New York, as trustee (the “Trustee”). The term
“Indenture,” as used herein, includes the
Officer’s Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to
Section 3.01 of the Indenture.
The Company
understands that the Underwriters propose to make a public offering
of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement
on Form S-3 (No. 333-160214), including the related
preliminary prospectus or prospectuses, which registration
statement became effective upon filing under Rule 462(e) of the
rules and regulations of the Commission (the “1933 Act
Regulations”) under the Securities Act of 1933, as amended
(the “1933 Act”). Such registration statement covers
the registration of the Securities under the 1933 Act. Promptly
after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of
Rule 430B (“Rule 430B”) of the 1933 Act
Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any
information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of and included in such registration statement
pursuant to Rule 430B is referred to as “Rule 430B
Information.” Each prospectus used in connection with the
offering of the Securities that omitted Rule 430B Information
is herein called a “preliminary prospectus.” Such
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by 1933 Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form
first furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in
this Underwriting Agreement to financial statements and schedules
and other information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in or otherwise deemed by 1933 Act
Regulations to be a part of or included in the Registration
Statement, Prospectus or preliminary prospectus, as the case may
be, prior to the date hereof; and all references in this
Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall
be deemed to include the filing of any document under the 1934 Act
which is incorporated by reference in or otherwise deemed by 1933
Act Regulations to be a part of or included in the Registration
Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company . The Company
represents and warrants to each Underwriter as of the date hereof,
the Applicable Time referred to in Section 1(a)(i) hereof and
as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) Status as a
Well-Known Seasoned Issuer . (A) At the time of filing the
Original Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the
1933 Act Regulations) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the 1933 Act Regulations
and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in
Rule 405 of the 1933 Act Regulations (“Rule 405”),
including not having been and not being an
“ineligible
issuer”
as defined in Rule 405. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic
shelf registration statement”. The Company has not received
from the Commission any notice pursuant to Rule 401(g)(2) of
the 1933 Act Regulations objecting to the use of the automatic
shelf registration statement form.
At the time of
filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)
of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
(ii)
Registration Statement, Prospectus and Disclosure at Time of
Sale . The Original Registration Statement became effective
upon filing under Rule 462(e) of the 1933 Act Regulations
(“Rule 462(e)”) on June 25, 2009, and any
post-effective amendment thereto also became effective upon filing
under Rule 462(e). No stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information with respect to the Registration Statement
has been complied with.
Neither the
Company, nor any person acting on the Company’s behalf
(within the meaning, for this paragraph only, of Rule 163(c) of the
1933 Act Regulations), has made any offer that is a written
communication relating to the Securities prior to the filing of the
Original Registration Statement.
At the respective
times the Original Registration Statement and each amendment
thereto became effective, at each deemed effective date with
respect to the Underwriters pursuant to Rule 430B(f)(2) of the
1933 Act Regulations and at the Closing Time, the Registration
Statement complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under
the 1939 Act (the “1939 Act Regulations”), and did not
and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided ,
however , that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the 1939 Act of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto).
Neither the
Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any such amendment or supplement was issued and
at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
Each preliminary
prospectus (including the prospectus or prospectuses filed as part
of the Original Registration Statement or any amendment thereto)
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the
Prospectus
delivered to
the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
As of the
Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time (as defined below) and the Statutory Prospectus (as
defined below), considered together (collectively, the
“General Disclosure Package”), nor (y) any
individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
As of the time of
the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet (as defined in
Section 3(b)), will not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 5:00 pm (Eastern time) on June 25, 2009 or
such other time as agreed by the Company and Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is
a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in
Schedule C hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to
the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Securities or until any earlier date that the issuer notified or
notifies Citigroup Global Markets Inc. and J.P. Morgan Securities
Inc. as described in Section 3(e), did not, does not and will
not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to
be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through Citigroup Global Markets Inc.
and J.P. Morgan Securities Inc. expressly for use
therein.
(iii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934
Act Regulations”), and, when read together with the other
information in the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the earlier of
the time the Prospectus was first used and the date and time of the
first contract of sale of Securities in this offering and
(c) at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv) No
Material Adverse Change . Since the respective dates as of
which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change
in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
taken as a whole, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(v) Good
Standing of the Company and the Subsidiaries . Each of the
Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Prospectus, and the Company and Jefferies & Company,
Inc., a Delaware corporation (the “Subsidiary”) are in
good standing and duly qualified to do business as foreign
corporations under the laws of each jurisdiction that requires such
qualification of the Company or any subsidiary, except where the
failure to be so qualified would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business.
(vi) Capital
Stock of the Subsidiaries . All the outstanding shares of
capital stock of each subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Prospectus (or as represented
by minority interests as disclosed in the financial statements
incorporated by reference therein), all outstanding shares of
capital stock of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests,
claims, liens or encumbrances (other than, in the case of certain
non-U.S. subsidiaries, director qualifying shares which
individually and in the aggregate represent an immaterial ownership
interest in such subsidiaries). The Subsidiary is the only
subsidiary that is a Significant Subsidiary (as such term is
defined by Rule 405) of the Company.
(vii)
Capitalization . The Company’s authorized equity
capitalization is as set forth in the Prospectus and the Securities
conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus; and,
except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue
(other than equity compensation grants and awards under the
Company’s plans in the ordinary course consistent with past
practice), or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(viii) (A)
Accuracy of Exhibits . There is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements in (I) the Prospectus under the headings
“Certain ERISA Considerations”, “Description of
the Notes” and “Description of Securities We May
Offer” and (II) the Company’s Annual Report on
Form 10-K for the year ended December 31, 2008 under the
headings “Part I — Item 1. Business —
Regulation” and “ Part I — Item 3.
— Legal Proceedings”, insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(B)
The statements set forth in the Prospectus under the heading
“Material United States Federal Tax Considerations,”
insofar as such statements purport to describe certain federal tax
laws of the United States, are accurate and complete in all
material respects.
(ix)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company.
(x) Investment
Company Act . The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(xi) Absence of
Further Requirements . No consent, approval, authorization,
filing with or order of any court or governmental agency or body is
required in connection with the transactions contemplated herein,
except such as have been obtained under the 1933 Act and the 1939
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated
herein and in the Prospectus.
(xii) Absence
of Conflicts . Neither the issue and sale of the Securities nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, which violation or
default would, in the case of clauses (ii) and
(iii) above, either individually or in the aggregate with all
other violations and defaults referred to in this
paragraph
(xii) (if any),
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto filed after the date hereof).
(xiii) Absence
of Registration Rights . No holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement.
(xiv) Financial
Statements . The consolidated historical financial statements
and schedules of the Company and its consolidated subsidiaries
included in the Prospectus, the Registration Statement and the
General Disclosure Package present fairly in all material respects
the financial condition, results of operations and cash flows of
the Company as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the 1933
Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption “Summary
Consolidated Financial Information” in the Prospectus and
Registration Statement fairly present, on the basis stated in the
Prospectus and the Registration Statement, the information included
therein.
(xv) Absence of
Proceedings . 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 or its or their
property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto filed after the date hereof).
(xvi)
Possession of Properties . Each of the Company and each of
its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently
conducted.
(xvii) Absence
of Defaults . Neither the Company nor any subsidiary is in
violation or default of (i) any provision of its charter or
bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, which violation or default would, in the
case of clauses (ii) and (iii) above, either individually
or in the aggregate with all other violations and defaults referred
to in this paragraph (xvii) (if any), have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto filed after the date hereof).
(xviii)
Independent Accountants . KPMG LLP, who have certified
certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Prospectus,
is an
independent registered public accounting firm with respect to the
Company as required by the 1933 Act and the applicable published
rules and regulations of the Public Company Accounting Oversight
Board.
(xix) Tax
Laws . The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto filed after the date hereof)
and has paid all taxes shown by such returns to be payable and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto filed after the
date hereof).
(xx) Absence of
Labor Dispute . No labor problem or dispute with the employees
of the Company or any of its subsidiaries exists or is threatened
or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
that could have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto filed after the date
hereof).
(xxi)
Insurance . The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies
of insurance and fidelity or surety bonds insuring the Company or
any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause, except for claims that in the aggregate are not significant
in amount; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and neither
the Company nor any such subsidiary has 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 from
similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto filed after the date
hereof).
(xxii)
Dividends . No subsidiary of the Company is currently
prohibited, directly or indirectly, 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 property or assets
to
the Company or
any other subsidiary of the Company, except as described in or
contemplated by the Prospectus.
(xxiii)
Possession of Licenses and Permits . The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary and material to the conduct of
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto filed after the date hereof).
(xxiv)
Accounting Controls and Disclosure Controls . The Company
and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(a) transactions are executed in accordance with
management’s general or specific authorizations;
(b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (c) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (d) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as described in the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been
(I) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(II) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
The Company and
its consolidated subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules
and forms, and is accumulated and communicated to the
Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as
appropriate, to allow timely decisions regarding
disclosure.
(xxv) Absence
of Manipulation . The Company has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the 1934
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xxvi)
Compliance with the Sarbanes-Oxley Act . There is and has
been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(xxvii)
Environmental Laws . The Company and its subsidiaries are
(i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in
compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto filed after the date hereof).
Except as set forth in the Prospectus, neither the Company nor any
of the subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended.
(xxviii)
ERISA . Each of the Company and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding
standards of Section 302 of the United States Employee
Retirement Income Security Act of 1974 (“ERISA”) and
the regulations and published interpretations thereunder with
respect to each “plan” (as defined in Section 3(3)
of ERISA and such regulations and published interpretations) in
which employees of the Company and its subsidiaries are eligible to
participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. The Company and its
subsidiaries have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV
of ERISA.
(xxix) Pending
Proceedings and Examinations . The Registration Statement is
not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the 1933 Act, and the Company is not the
subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(xxx)
Redemption . The Company has determined that there is no
more than a remote likelihood that it will exercise its right to
redeem the Securities in circumstances where the amount that the
Company would have to pay in redemption is based on the sum of the
present values of the remaining scheduled payments of interest and
principal on the Securities. The Company makes this representation
only in connection with the discussion in the Prospectus under the
heading “Material United States Federal Tax
Considerations”.
(xxxi) Foreign
Corrupt Practices Act . Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by the Company or any
subsidiary of the FCPA, including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company and its subsidiaries have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed reasonably
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
(xxxii) Money
Laundering Laws . The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping
and reporting requirements 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 (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.
(xxxiii)
OFAC . Neither the Company nor any of its subsidiaries nor,
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. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary or other
person or entity, for the purpose of financing the activities of
any subsidiary subject to, or any other person known to the Company
to be currently subject to, any U.S. sanctions administered by
OFAC
(xxxiv)
Description of Securities and Indenture . The Securities and
the Indenture conform in all material respects to the description
thereof contained in the Prospectus.
(xxxv) Due
Authorization of the Indenture and the Securities . The
Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the 1939 Act, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law); and the Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal,
valid and binding obligations enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at
law).
(b)
Officer’s Certificates . Any certificate signed
by any officer of the Company or any of its subsidiaries delivered
to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing .
(a)
Securities . On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the
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