EXHIBIT 1.1
$125,000,000
TRUE TEMPER SPORTS,
INC.
8-3/8% Senior Subordinated Notes
due 2011
PURCHASE
AGREEMENT
March 3, 2004
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CREDIT SUISSE FIRST BOSTON LLC
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GOLDMAN, SACHS & CO.
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c/o Credit Suisse First Boston LLC,
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Eleven Madison Avenue,
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New York, N.Y. 10010-3629
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Ladies and Gentlemen:
1.
Introductory.
True Temper Sports, Inc., a
Delaware corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule
A hereto (the “ Purchasers ”) U.S. $125,000,000
principal amount of its 8-3/8% Senior Subordinated Notes due 2011
(the “ Offered Securities ”) to be issued under
an indenture, dated as of March 15, 2004 (the “
Indenture ”), among the Company, the Guarantors (as
defined below) and The Bank of New York, as trustee (the “
Trustee ”). The Offered Securities will be
unconditionally guaranteed as to the payment of principal, premium,
if any, and interest (the “ Guarantees ”) by the
subsidiaries of the Company named in Schedule B hereto (each a
“ Guarantor ” and, collectively, the “
Guarantors ”). The United States Securities Act
of 1933, as amended, is herein referred to as the “
Securities Act .”
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement to be dated the Closing Date (as defined below)
among the Company, the Guarantors and the Purchasers (the “
Registration Rights Agreement ”) for so long as such
Offered Securities constitute “Transfer Restricted
Securities” (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the
Securities and Exchange Commission (the “ Commission
”) under the circumstances set forth therein (i) a
registration statement under the Securities Act (the “
Exchange Offer Registration Statement ”) relating to
the Offered Securities in a like aggregate principal amount as the
Offered Securities originally issued under the Indenture, identical
in all material respects to the Offered Securities and the
Guarantees and registered under the Securities Act (the “
Exchange Notes ” and the “ Exchange
Guarantees ,” and together, the “ Exchange
Securities ”) to be offered in exchange for the Offered
Securities (such offer to exchange being referred to as the “
Exchange Offer ”) and (ii) a shelf registration
statement pursuant to Rule 415
under the Securities Act (the “ Shelf
Registration Statement ” and, together with the Exchange
Offer Registration Statement, the “ Registration
Statements ”) relating to the resale by certain holders
of the Offered Securities and to use all commercially reasonable
efforts to cause such Registration Statements to be declared and
remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange
Offer. The Offered Securities and the Exchange Securities are
referred to collectively as the “ Securities
”.
The Offered Securities are being
issued and sold in connection with the acquisition (the “
Acquisition ”) by TTS Holdings LLC (“
Holdings ”) of substantially all of the capital stock
in True Temper Corporation, a Delaware corporation which owns 100%
of the capital stock of the Company (the “ Parent
”), pursuant to a stock purchase agreement, dated as of
January 30, 2004 (the “ Acquisition Agreement
”). In connection with the Acquisition, (i) the Company
will enter into a new senior credit facility consisting of a $110.0
million term loan facility and a $20.0 million revolving credit
facility (the “ Senior Credit Facility ”), (ii)
Holdings will contribute $118.5 million cash to the Parent for
common equity and certain existing member of management of the
Company will contribute $3.5 million cash to the Parent for common
equity (collectively, the “ Equity Investment ”)
and (iii) the Company will issue the Offered Securities. As
used herein, the term the “ Transactions ” means
collectively (a) the offering of the Offered Securities, (b)
entering into the Senior Credit Facility, (c) the Equity
Investment, (d) the Acquisition and related transactions and (e)
the use of proceeds from the offering of Offered Securities and the
Equity Investment and the borrowings under the Senior Credit
Facility as described under the caption “Use of
Proceeds” in the Offering Circular. As used herein, the
term “ Operative Documents ” refers to this
Agreement, the Registration Rights Agreement (as defined below),
the Indenture, the Securities and the
Guarantees.
Each of the Company and the
Guarantors hereby agrees with the several Purchasers as
follows:
2.
Representations and Warranties of
the Company and the Guarantors. Each of the Company and the Guarantors
represents and warrants to, and agrees with, the several Purchasers
that:
(a)
A preliminary
offering circular and an offering circular relating to the Offered
Securities have been prepared by the Company and the
Guarantors. Such preliminary offering circular (the
“ Preliminary Offering
Circular ”) and offering
circular (the “ Offering Circular ”), as supplemented as
of the date of this Agreement, are hereinafter collectively
referred to as the “ Offering Document ”. On the date of
this Agreement, the Offering Document does 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. The
preceding sentence does not apply to statements in or omissions
from the Offering Document based upon written information furnished
to the Company by any Purchaser through Credit Suisse First Boston
LLC (“ CSFB
”)
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b)
hereof. Except as disclosed in the Offering Document, on the
date of this Agreement, the Company’s Annual Report on
Form 10-K most recently filed with the Commission and all
subsequent reports (collectively, the “ Exchange Act Reports ”) which have been
filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934 (the “ Exchange Act ”), taken as a whole,
do not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such Exchange Act Reports, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder.
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(b)
The Company has
been duly incorporated and is an existing corporation in good
standing under the laws of the state of Delaware, with the
requisite corporate power and authority to own its properties and
conduct its business as described in the Offering Circular; and the
Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification except where the failure to be so qualified would
not, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole (“ Material
Adverse Effect ”).
(c)
Each Guarantor
has been duly incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its incorporation,
with the requisite corporate power and authority to own its
properties and conduct its business as described in the Offering
Circular. Each Guarantor is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification except where the failure to be
so qualified would not, individually or in the aggregate, have a
Material Adverse Effect. All of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects (except (i) as otherwise set forth in the
Offering Circular or the Exchange Act Reports, (ii) as pledged to
secured indebtedness of the Company and/or its subsidiaries
pursuant to the Senior Credit Facility and other instruments
evidencing indebtedness existing on the Closing Date, (iii) for
statutory liens for current taxes, assessments or other
governmental charges not yet due and payable or the amount or
validity of which is being contested in good faith by appropriate
proceedings and (iv) for restrictions and other limitations on the
transfer thereof pursuant to applicable federal, state and foreign
securities laws (the liens, encumbrances and defects described in
the preceding clauses (i) through (iv) are herein referred to as
“ Permitted
Liens ”)).
(d)
The execution and
delivery of the Indenture have been duly authorized by the Company
and each of the Guarantors; the Indenture, when duly executed and
delivered by each of the parties thereto, will constitute a valid
and legally binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Indenture will conform to the description thereof contained in the
Offering Circular.
(e)
The Offered
Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (assuming the due authentication of the Offered
Securities by the Trustee in accordance with the terms of the
Indenture), such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Circular, and such
Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(f)
The Guarantee of
the Offered Securities by each Guarantor has been duly authorized
by such Guarantor, and when the Offered Securities are delivered
and paid for pursuant to this Agreement on the Closing Date
(assuming the due authentication of the Offered Securities and the
Guarantees by the Trustee in accordance with the terms of the
Indenture), will
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have been duly
executed and delivered by such Guarantor and will conform to the
description thereof contained in the Offering Circular and such
Guarantee will constitute a valid and legally binding obligation of
such Guarantor, enforceable against such Guarantor in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(g)
On the Closing
Date, the Exchange Notes will have been duly authorized by the
Company; and when the Exchange Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Exchange Notes will be entitled to the
benefits of the Indenture and will be the valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(h)
On the Closing
Date, the Exchange Guarantees will have been duly authorized by the
Guarantors; and when the Exchange Guarantees are issued, executed
and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Exchange Guarantees will be entitled
to the benefits of the Indenture and will be the valid and legally
binding obligations of the Guarantors, enforceable against the
applicable Guarantor in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(i)
Neither the
Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default in the performance of
any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease 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 or their
respective property is bound, which violation or default would
individually or in the aggregate have a Material Adverse
Effect.
(j)
The Registration
Rights Agreement has been duly authorized by the Company and each
of the Guarantors and, on the Closing Date, will have been duly
executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been
duly executed and delivered by each of the parties thereto, the
Registration Rights Agreement will be a valid and binding agreement
of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
and except that any rights to indemnity and contributions may be
limited by federal and state securities laws and public policy
considerations. On the Closing Date, the Registration Rights
Agreement will conform as to legal matters to the description
thereof in the Offering Circular.
(k)
Except as
disclosed in the Offering Circular, there are no contracts,
agreements or understandings between the Company or any of the
Guarantors and any person that would give rise to a valid claim
against the Company, any of the Guarantors or any Purchaser for a
brokerage commission, finder’s fee or other like payment in
connection with the issuance and sale by the Company of the Offered
Securities.
(l)
No consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by
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the Operative
Documents or in connection with the issuance and sale of the
Securities by the Company except for (i) the filing with the
Commission of the appropriate registration statement (and all
necessary and advisable amendments thereto) and the order of the
Commission declaring the Exchange Offer Registration Statement or
the Shelf Registration Statement (each as defined in the
Registration Rights Agreement) effective, (ii) the filing of a
notice of sale on Form D as required by Rule 503 of Regulation D of
the Securities Act and (iii) filings under state securities
laws.
(m)
The execution,
delivery and performance of the Operative Documents, and the
issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of: (i) any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, (ii) any agreement or
instrument listed on Schedule D hereto to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject (collectively, the
“Material
Agreements” ), or (iii) the charter or
by-laws of the Company or any such subsidiary, except, in the cases
of clauses (i) and (ii) above, for any such breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(n)
This Agreement
has been duly authorized, executed and delivered by the
Company.
(o)
Except as
disclosed in the Offering Circular, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects (other than Permitted
Liens) that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Circular, the Company and its
subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions (other than Permitted
Liens) that would materially interfere with the use made or to be
made thereof by them.
(p)
The Company and
its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(q)
No labor dispute
with the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent that would have a
Material Adverse Effect.
(r)
The Company and
its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “ intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
except where any failure to own, possess or acquire such
intellectual property rights would not, individually or in the
aggregate, have a Material Adverse Effect. The Company and
its subsidiaries have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to
the
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Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(s)
Except as
disclosed in the Offering Circular, neither the Company nor any of
its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, “
environmental laws
”), and,
to their knowledge, owns or operates any real property contaminated
with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending
investigation which would lead to such a claim.
(t)
Except as
disclosed in the Offering Circular and after consultation with the
Company’s counsel, there are no pending actions, suits or
proceedings against or, to the Company’s knowledge, affecting
the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under the
Operative Documents, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits
or proceedings are, to the Company’s knowledge, threatened or
contemplated.
(u)
The historical
financial statements included in the Offering Circular present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements
have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis except as otherwise stated therein; and the assumptions used
in preparing the pro forma financial statements included in the
Offering Circular provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described in the Offering Circular, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(v)
Except as
disclosed in the Offering Circular, since the date of the latest
audited financial statements included in the Offering Circular
there has been no material adverse change, nor any development or
event that is reasonably expected to involve a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole (other than (i) the issuance of
ratings of the Company, the Senior Credit Facility and the Offered
Securities by Moody’s Investors Service pursuant to its
release issued on February 24, 2004 and (ii) the issuance of
ratings of the Company, the Parent, the Senior Credit Facility and
the Offered Securities and the issuance of negative outlooks for
the Company and the Parent by Standard & Poor’s Rating
Group, Inc. pursuant to its release issued on February 24, 2004,
such ratings and outlook issuances set forth in clauses (i) and
(ii), collectively the “Ratings Issuances”
), and, except
(A) as disclosed in or contemplated by the Offering Circular, (B)
as provided in the Acquisition Agreement or (C) paid or made in the
ordinary course of business consistent with past practices, since
the date of the latest audited financial statements included in the
Offering Circular there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
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(w)
The Company files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(x)
The Company is
not an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment
Company Act of 1940 (the “ Investment Company Act ”); and the Company is
not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Circular, will not be an
“investment company” as defined in the Investment
Company Act.
(y)
No securities of
the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as the Offered Securities or the Guarantees are
listed on any national securities exchange registered under Section
6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(z)
On the Closing
Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
“ Trust Indenture
Act ”), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(aa)
None of the
Company, the Guarantors nor any of their respective affiliates or
any person acting on its or their behalf (other than the
Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S under the Securities Act
(“ Regulation S
”) with
respect to the Offered Securities or the Guarantees.
(bb)
No registration
under the Securities Act of the Offered Securities or the
Guarantees is required for the initial sale of the Offered
Securities and the Guarantees to the Purchasers as contemplated
hereby or for the initial resale thereof by the Purchasers in the
manner contemplated hereby, in each case, assuming the accuracy of
the Purchasers’ representations and warranties set forth in
Section 4 hereof and the compliance by the Purchasers of their
respective covenants and agreements set forth in Section 4 hereof;
and it is not necessary to qualify an indenture in respect of the
Offered Securities under the Trust Indenture Act.
(cc)
Neither the
Company, nor any of its affiliates, nor any person acting on its or
their behalf (other than the Purchasers, as to whom the Company and
the Guarantors make no representation) (i) has, within the
six-month period prior to the date hereof, offered or sold in the
United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Offered Securities
or any security of the same class or series as the Offered
Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any
form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect
to any such securities sold in reliance on Rule 903 of
Regulation S under the Securities Act, by means of any
directed selling efforts within the meaning of Rule 902(c) of
Regulation S. The Company, its affiliates and any person
acting on its or their behalf (other than the Purchasers, as to
whom the Company and the Guarantors make no representation) have
complied and will comply with the offering restrictions requirement
of Regulation S. The Company has not entered and will not
enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this
Agreement.
(dd)
Except as
disclosed in the Offering Circular, there are no contracts,
agreements or understandings between the Company or any Guarantor
and any person granting such person
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the right to
require the Company or such Guarantor to file a registration
statement under the Securities Act with respect to any securities
of the Company or such Guarantor or to require the Company or such
Guarantor to include such securities with the Offered Securities
and Guarantees registered pursuant to any registration statement or
in any securities being registered pursuant to any other
Registration Statement.
(ee)
Neither the
Company nor any of its subsidiaries nor any agent thereof acting on
the behalf of them (other than the Purchasers, as to whom the
Company and the Guarantors make no representation) has taken, and
none of them will take, any action that would cause this Agreement
or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System, in each case, as in effect
on the Closing Date.
(ff)
The Company and
its subsidiaries, taken together, 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; and neither the Company nor of its
subsidiaries (i) has received notice from any insurer or agent of
such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue
such insurance (other than payments of premium and other payments
in the ordinary course of business) or (ii) has reasonable grounds
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 at a cost that would not have a
Material Adverse Effect.
(gg)
Since the Ratings
Issuances on February 24, 2004, no “nationally recognized
statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act (i) has imposed
(or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the
Company’s or any Guarantor’s retaining any rating
assigned to the Company or any Guarantor, any securities of the
Company or any Guarantor or (ii) has indicated to the Company or
any Guarantor that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any
rating so assigned or (b) any change in the outlook for any
rating of the Company any Guarantor or any securities of the
Company or any Guarantor, in each case, other than a reiteration or
reannouncement of the Ratings Issuances.
(hh)
No form of
general solicitation or general advertising (as defined in
Regulation D under the Securities Act) was used by the Company, the
Guarantors or any of their respective representatives (other than
the Purchasers, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the
Offered Securities contemplated hereby, including, but not limited
to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general
advertising.
(ii)
Neither the
Company nor the Guarantors has violated any provisions of the
Employee Retirement Security Act of 1974, as amended
(“ ERISA
”), or any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except where any such violation
would not, individually or in the aggregate, have a Material
Adverse Effect.
(jj)
The Offering
Circular contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities
Act.
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(kk)
No relationship,
direct or indirect, that will be in effect following the Closing
Date and is required to be described under Item 404 of Regulation
S-K, exists between or among the Company or its subsidiaries on the
one hand, and the directors, officers or stockholders of the
Company and its subsidiaries on the other hand, which is not
described in the Offering Circular.
(ll)
The Company and
its subsidiaries maintain a system of 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 to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and
to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management’s general and
specific authorization and (iv) the recorded accountability for
assets is compared with existing assets at periodic intervals and
appropriate action is taken with respect to any
differences.
(mm)
Each of the
principal executive officer and the principal financial officer of
the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company)
has made all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (the “ Sarbanes-Oxley Act ”) with respect to all
annual and quarterly reports required to be filed by it to the
Commission to which the Sarbanes-Oxley Act applies. For
purposes of the preceding sentence, “principal executive
officer” and “principal financial officer” shall
have the meanings given to such terms in the Sarbanes-Oxley
Act.
(nn)
All material tax
returns required to be filed by the Company and its subsidiaries in
any jurisdiction have been filed, other than any filings not yet
due or being contested in good faith, except where the failure to
do so would not, individually or in the aggregate, have a Material
Adverse Effect, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received
by the Company and its subsidiaries have been paid, other than
those not yet payable or being contested in good faith and for
which adequate reserves have been provided or which would not,
individually or in the aggregate, have a Material Adverse
Effect.
(oo)
To the knowledge
of the Company and each Guarantor, prior to the date hereof,
neither the Company nor any of its subsidiaries has taken any
action which is designed to or which has constituted or which would
have been expected to cause or result in unlawful stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Offered Securities.
(pp)
The
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