Exhibit 1.1
EXECUTION COPY
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
10,667,000 Shares of Common
Stock
Underwriting
Agreement
June 17, 2009
J.P. Morgan Securities
Inc.
As Representative of the
several Underwriters
listed
in Schedule 1
hereto
383 Madison Avenue, 4th Floor
New York, NY 10179
Ladies and Gentlemen:
Harman International Industries,
Incorporated, a Delaware corporation (the “Company”),
proposes to issue and sell to the several Underwriters listed in
Schedule 1 hereto (the “Underwriters”), for whom
J.P. Morgan Securities Inc. is acting as representative (the
“Representative”), an aggregate of 10,667,000 shares
(the “Underwritten Shares”) of common stock, par value
$0.01 per share (“Common Stock”), of the Company and,
at the option of the Underwriters, up to an additional 1,600,050
shares (the “Option Shares”) of Common Stock of the
Company. The Underwritten Shares and the Option Shares are herein
referred to as the “Shares”. The shares of Common Stock
of the Company to be outstanding after giving effect to the sale of
the Shares are referred to herein as the “Stock”. The
Stock, including the Shares, will have attached thereto rights (the
“Rights”), each of which represents the right to
purchase one-hundredth of a share (subject to adjustment) of Series
A Junior Participating Preferred Stock, par value $0.01 per share,
of the Company (the “Series A Preferred”). The Rights
are to be issued pursuant to a Rights Agreement (the “Rights
Agreement”) dated as of December 13, 1999, as amended,
between the Company and Mellon Investor Services LLC (f/k/a
ChaseMellon Shareholder Services, L.L.C.), as rights
agent.
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Shares, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-159985),
including a prospectus, relating to the Shares and Rights. Such
registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of
the registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term
“Prospectus” means the prospectus in the form first
used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this
underwriting
agreement (this “Agreement”) to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the effective date of
the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference
to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the Applicable Time
(as defined below), the Company had prepared the following
information (collectively, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated June 15, 2009
and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex A
hereto.
“Applicable Time” means
6:30 p.m., New York City time, on June 17, 2009.
2. Purchase of the Shares by the
Underwriters .
(a) The Company agrees to issue and
sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price per share (the “Purchase
Price”) of $17.86.
In addition, the Company agrees to
issue and sell the Option Shares to the several Underwriters as
provided in this Agreement, and the Underwriters, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price less an amount per share equal to any
dividends or distributions declared by the Company and payable on
the Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be
purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the
same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule 1 hereto (or such number
increased as set forth in Section 10 hereof) bears to the
aggregate number of Underwritten Shares being purchased from the
Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representative in its sole discretion shall make.
The Underwriters may exercise the
option to purchase Option Shares at any time in whole, or from time
to time in part, on or before the thirtieth day following the date
of the Prospectus, by written notice from the Representative to the
Company. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and
time when the Option Shares are to be delivered and paid for, which
may be the same date and time as the Closing Date (as hereinafter
defined) but shall not be earlier than the Closing Date or later
than the tenth full business day (as hereinafter defined) after the
date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 10 hereof). Any such
notice shall be given at least three business days prior to the
date and time of delivery specified therein.
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(b) The Company understands that the
Underwriters intend to make a public offering of the Shares as soon
after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Shares on
the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or
through any affiliate of an Underwriter.
(c) Payment for the Shares shall be
made by wire transfer in immediately available funds to the account
specified by the Company to the Representative in the case of the
Underwritten Shares, at the offices of Cravath, Swaine &
Moore LLP at 10:00 A.M., New York City time, on June 23,
2009, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the
Representative and the Company may agree upon in writing or, in the
case of the Option Shares, on the date and at the time and place
specified by the Representative in the written notice of the
Underwriters’ election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date”, and the time
and date for such payment for the Option Shares, if other than the
Closing Date, is herein referred to as the “Additional
Closing Date”.
Payment for the Shares to be
purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the
Representative for the respective accounts of the several
Underwriters of the Shares to be purchased on the Closing Date or
the Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”),
unless the Representative shall otherwise instruct. The
certificates for the Shares will be made available for inspection
and packaging by the Representative at the office of DTC or its
designated custodian not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, neither the Representative nor any
other Underwriter is advising the Company or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time
of filing thereof, complied in all material respects with the
Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information
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relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in any Preliminary Prospectus, it
being understood and agreed that the only such information
furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(b) Pricing Disclosure
Package . The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in such Pricing
Disclosure Package, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not prepared, used, authorized,
approved or referred to, and will not prepare, use, authorize,
approve or refer to, any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes
an offer to sell or solicitation of an offer to buy the Shares
(each such communication by the Company or its agents and
representatives (other than a communication referred to in clause
(i) below) an “Issuer Free Writing Prospectus”),
other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents
listed on Annex A hereto, each electronic road show and any
other written communications approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complies
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus filed
prior to the first use of such Issuer Free Writing Prospectus, did
not, and as of the Closing Date and as of the Additional Closing
Date, as the case may be, will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing
Prospectus or Preliminary Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representative expressly for use in such Issuer Free Writing
Prospectus or Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405
of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act has been received by
the Company. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission, and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering of
the Shares has been initiated or threatened by the Commission; as
of the applicable effective date of the Registration
Statement
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and any post-effective amendment
thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may
be, the Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(e) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package, when
they were filed with the Commission conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Pricing Disclosure Package, when such documents
are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(f) Financial Statements. The
financial statements (including the related notes thereto) of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles (“GAAP”) in
the United States applied on a consistent basis throughout the
periods covered thereby, and any supporting schedules included or
incorporated by reference in the Registration Statement present
fairly, in all material respects, the information required to be
stated therein; and the other financial information included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus has been derived from
the accounting records of the Company and its consolidated
subsidiaries and presents fairly, in all material respects, the
information shown thereby.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any change in the capital
stock (other than the issuance of shares of Common Stock upon
exercise of stock options and warrants or vesting of awards
described as outstanding in, and the grant of options and awards
under existing equity incentive plans described in, the
Registration Statement, the Pricing Disclosure Package and the
Prospectus), any material change in the short-term debt or
long-term debt of the Company or any of its subsidiaries, or any
dividend or distribution of any kind
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declared, set aside for payment,
paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties,
management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole and
that is either from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h) Organization and Good
Standing. The Company and each of its subsidiaries set forth on
Schedule 2 hereto (the “Significant Subsidiaries”)
have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified or in good standing or have such power or
authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management,
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under this
Agreement (a “Material Adverse Effect”). The
subsidiaries listed in Schedule 2 to this Agreement are the
only “significant subsidiaries” (within the meaning of
Rule 1-02 of Regulation S-X under the Exchange Act) of
the Company.
(i) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Capitalization”; all the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the
Pricing Disclosure Package and the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary owned, directly or indirectly, by the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable (except, in the case of any foreign subsidiary, for
directors’ qualifying shares and except as otherwise
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus) and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party (except as may secure the Second Amended
and Restated Multi-Currency, Multi-Option Credit Agreement, dated
as of March 31, 2009, as amended, among the Company, Harman
Holding
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GmbH & Co. KG, the
Representative, as arranger, JPMorgan Chase Bank, N.A., as
administrative agent, HSBC Bank USA, National Association,
Bayerische Hypo-und Vereinsbank AG, New York Branch and Bank of
Tokyo-Mitsubishi UFJ Trust Company, as syndication agents, and the
other financial institutions party thereto (the “Credit
Agreement”), or as otherwise described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus),
except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(j) Stock Options. With
respect to the stock options (the “Stock Options”)
granted pursuant to the stock-based compensation plans of the
Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each
such grant was, in all material respects, made in accordance with
the terms of the Company Stock Plans, the Exchange Act and all
other applicable laws and regulatory rules or requirements,
including the rules of the New York Stock Exchange (the
“Exchange”) and any other exchange on which Company
securities are traded, and (iv) each such grant was, in all
material respects, properly accounted for in accordance with GAAP
in the financial statements (including the related notes) of the
Company and disclosed in the Company’s filings with the
Commission in accordance with the Exchange Act and all other
applicable laws. The Company has not knowingly granted, and there
is no and has been no policy or practice of the Company of
granting, Stock Options prior to, or otherwise coordinating the
grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its
subsidiaries or their results of operations or
prospects.
(k) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby has been duly and
validly taken.
(l) Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by
the Company.
(m) The Shares. The Shares to
be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered and paid for as provided
herein, will be duly and validly issued, will be fully paid and
nonassessable and will conform in all material respects to the
descriptions thereof in the Registration Statement, the Pricing
Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights; the
Rights Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally or by equitable principles
relating to enforceability; and the Rights have been duly
authorized by the Company and, when issued upon issuance of the
Shares, will be validly issued, and the Series A Preferred has been
duly authorized by the Company and validly reserved for issuance
upon the exercise in accordance with the terms of the Rights
Agreement and will be validly issued, fully paid and
non-assessable.
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(n) Descriptions of this
Agreement. This Agreement conforms in all material respects to
the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(o) No Violation or Default.
(i) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws or similar
organizational documents; (ii) neither the Company nor any of
its subsidiaries is in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject; and (iii) except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
neither the Company nor any of its subsidiaries is in violation of
any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for
any such default or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(p) No Conflicts. The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its Significant Subsidiaries or (iii) result
in the violation by the Company or any of its subsidiaries of any
law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for
any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(q) No Consents Required. No
consent, approval, authorization, order, license, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale
of the Shares and the consummation of the transactions contemplated
by this Agreement, except (i) that which has been obtained,
(ii) for the registration of the Shares under the Securities
Act and (iii) such consents, approvals, authorizations, orders
and registrations or qualifications (A) as may be required by
the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters or (B) described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(r) Legal Proceedings. Except
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is the
subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect; no
such
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investigations, actions, suits or
proceedings are, to the knowledge of the Company, threatened or
contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and
(ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(s) Independent Accountants .
KPMG LLP, who has certified certain financial statements of the
Company and its consolidated subsidiaries, is an independent
registered public accounting firm with respect to the Company and
its consolidated subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(t) Title to Real and Personal
Property . The Company and its subsidiaries have good and
marketable title in fee simple (in the case of owned real property)
to, or have valid and marketable rights to lease or otherwise use,
all items of real and personal property and assets that are
material to the respective businesses of the Company and its
subsidiaries, in each case, to the knowledge of the Company, free
and clear of all liens, encumbrances, claims and defects and
imperfections of title, except those that (i) secure the
Credit Agreement, (ii) do not materially interfere with the
use made and proposed to be made of such property by the Company
and its subsidiaries or (iii) could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(u) Title to Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses as
currently conducted and as proposed to be conducted, except as
would not reasonably be expected to have a Material Adverse Effect
and, to the Company’s knowledge, the conduct of their
respective businesses will not conflict in any material respect
with any such rights of others. The Company and its subsidiaries
have not received any notice of any claim of infringement,
misappropriation or conflict with any such rights of others in
connection with its patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how,
which could reasonably be expected to result in a Material Adverse
Effect.
(v) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure
Package.
(w) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, will not be required to register as an
“investment company” or an entity
“controlled” by an “investment
company”
9
within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “Investment
Company Act”).
(x) Taxes. The Company and
its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed
through the date hereof, except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect; and
except as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, there is no tax
deficiency that has been, or could reasonably be expected to be,
asserted against the Company or any of its subsidiaries or any of
their respective properties or assets that would reasonably be
expected to have a Material Adverse Effect.
(y) Licenses and Permits.
Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
except where the failure to possess or make the same would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, or except as would not reasonably be expected to have a
Material Adverse Effect, neither the Company nor any of its
subsidiaries has received notice of any revocation or modification
of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary
course.
(z) No Labor Disputes. No
labor disturbance by, or dispute with, employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company,
is contemplated or threatened, and the Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, except as would not reasonably
be expected to have a Material Adverse Effect.
(aa) Compliance with and
Liability under Environmental Laws. Except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) the Company and its subsidiaries (A) are,
and, to the knowledge of the Company at all prior times were, in
compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions,
directives, judgments, decrees, orders and the common law relating
to pollution or the protection of the environment, natural
resources or human health or safety, including those relating to
the generation, storage, treatment, use, handling, transportation,
disposal, discharge, Release or threat of Release of Hazardous
Materials (collectively, “Environmental Laws”),
(B) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct
their respective businesses, (C) have not received notice of
any actual or potential liability under or relating to, or actual
or potential violation of, any Environmental Laws, including for
the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event
or condition that would reasonably be expected to result in any
such notice, (D) are not conducting or paying for, in whole or
in part, any investigation, remediation or other corrective action
pursuant to any Environmental Law at any location, and (E) are
not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and
(ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its
subsidiaries, except in
10
the case of each of (i) and
(ii) above, for any such matter, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (A) there are no proceedings that are pending, or
that are known to be contemplated, against the Company or any of
its subsidiaries under any Environmental Laws in which a
governmental entity is also a party, other than such proceedings
regarding which the Company reasonably believes no monetary
sanctions of $100,000 or more (exclusive of interest and related
costs, including legal fees) will be imposed, (B) the Company
and its subsidiaries are not aware of any facts or issues regarding
compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws, including the Release or
threat of Release of Hazardous Materials, that could reasonably be
expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company and its
subsidiaries, and (C) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any
Environmental Laws.
(bb) Hazardous Materials .
Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there has been no storage,
generation, transportation, use, handling, treatment, disposal,
discharge, Release or threat of Release of Hazardous Materials by,
relating to or caused by the Company or any of its subsidiaries
(or, to the knowledge of the Company and its subsidiaries, any
other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could
reasonably be expected to be liable) at, on, under or from any
property or facility now or previously owned, operated or leased by
the Company or any of its subsidiaries, or at, on, under or from
any other property or facility, in violation of any Environmental
Laws or in a manner or amount or to a location that could
reasonably be expected to result in any liability under any
Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos-containing materials, polychlorinated
biphenyls, and lead or lead-based paint, which is regulated by or
which otherwise can give rise to liability under any Environmental
Law. “Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or
migrating in, into or through the environment, or in, into from or
through any equipment, building or structure.
(cc) Compliance with ERISA.
Except as would not reasonably be expected to have a Material
Adverse Effect or as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (i) each
“employee benefit plan”, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), for which the Company or
any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “Code”)) would
have any liability (each, a “Plan”) has been maintained
in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited
to ERISA and the Code, except for noncompliance that could not
reasonably be expected to result in material liability to the
Company or its subsidiaries; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to
result in a material liability to the Company or its subsidiaries;
(iii) for each Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, the
minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as applicable, has been satisfied
(without taking into account any waiver thereof or extension of any
amortization period) and is
11
reasonably expected to be satisfied
in the future (without taking into account any waiver thereof or
extension of any amortization period); (iv) the fair market
value of the assets of each Plan exceeds the present value of all
benefits accrued under such Plan as of the end of the
Company’s most recent fiscal year (determined based on those
assumptions used to fund such Plan) (v) no “reportable
event” (within the meaning of Section 4043(c) of ERISA)
has occurred or is reasonably expected to occur that either has
resulted, or could reasonably be expected to result, in material
liability to the Company or its subsidiaries; (vi) neither the
Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the
Pension Benefit Guaranty Corporation (the “PBGC”), in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(a)(3) of ERISA); and (vii) there is no
pending audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the PBGC or any other governmental agency
or any foreign regulatory agency with respect to any Plan that
could reasonably be expected to result in material liability to the
Company or its subsidiaries. None of the following events has
occurred or is reasonably likely to occur: (x) a material
increase in the aggregate amount of contributions required to be
made to all Plans by the Company or its subsidiaries in the current
fiscal year of the Company and its subsidiaries compared to the
amount of such contributions made in the Company and its
subsidiaries’ most recently completed fiscal year; or
(y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such
obligations in the Company and its subsidiaries’ most
recently completed fiscal year.
(dd) Foreign Pension Plans .
Except as would not reasonably be expected to have a Material
Adverse Effect or as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, with respect to any
benefit plan that under applicable law of any jurisdiction other
than the United States is required to be funded through a trust or
other funding vehicle other than a trust or funding vehicle
maintained exclusively by a governmental authority (each, a
“Foreign Pension Plan”), none of the following events
have occurred or could reasonably be expected to occur:
(i) the existence of unfunded liabilities in excess of the
amount permitted under any applicable law, or in excess of the
amount that would be permitted absent a waiver from a governmental
authority; (ii) the failure to ma
