Credit Suisse
Securities (USA) LLC
Deutsche Bank Securities
Inc. ,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
1.
Introductory . The securityholders listed in Schedule B
hereto (the “ Selling Securityholders ”) propose
severally to sell 3,536,000 shares (“ Firm Stock
”) of common stock, $0.01 par value per share (“
Common Stock ”), of ACCO Brands Corporation, a
Delaware corporation (“ Company ”), and also
propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 530,400 additional
shares (“ Optional Stock ”) of the Common Stock
as set forth below. The Firm Stock and the Optional Stock are
herein collectively called the “ Offered Securities
.” The Company and the Selling Securityholders hereby agree
with the several Underwriters named in Schedule A hereto
(“ Underwriters ”) as follows:
2.
Representations and Warranties of the Company and the Selling
Securityholders . (a) The Company represents and warrants
to, and agrees with, the several Underwriters that:
(i) A registration
statement (No. 333-137333), including a prospectus, relating
to the Offered Securities has been filed with the Securities and
Exchange Commission (“ Commission ”) and has
become effective. “ Registration Statement ” as
of any time means such registration statement in the form then
filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and any information in a
prospectus or prospectus supplement deemed or retroactively deemed
to be a part thereof pursuant to Rule 430B (“ Rule
430B ”) or 430C (“ Rule 430C ”)
under the Securities Act of 1933 (“ Act ”) that
has not been superseded or modified. “Registration
Statement” without reference to a time means the Registration
Statement as of the time of the first contract of sale for the
Offered Securities, which time shall be considered the
“
Effective Date ” of the Registration Statement
relating to the Offered Securities. For purposes of this
definition, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430B.
“
Statutory Prospectus ” as of any time means the
prospectus relating to the Offered Securities that is included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference therein. For
purposes of this definition, information contained in a form of
prospectus (including a prospectus supplement) that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) (“ Rule 424(b)
” ) under the Act. “ Prospectus ”
means the Statutory Prospectus that discloses the public offering
price and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“
Issuer Free Writing Prospectus ” means any
“issuer free writing prospectus,” as defined in
Rule 433 (“ Rule 433 ”) under the Act,
relating to the Offered Securities 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). “ General Use Issuer 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 to this
Agreement. “ Limited Use Issuer Free Writing
Prospectus ” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus. “
Applicable Time ”
means p.m.
(Eastern time) on the date of this Agreement or such other time as
may be agreed to by the parties hereto.
(ii) At the time
the Registration Statement initially became effective, at the time
of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus) and on the
Effective Date relating to the Offered Securities, the Registration
Statement conformed and will conform in all respects to the
requirements of the Act and the rules and regulations of the
Commission (“ Rules and Regulations ”) and did
not and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. On the
date of this Agreement, the Registration Statement and the
Prospectus each conform in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents
includes any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 8(c)
hereof.
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(iii) (A)(1) At
the time of initial filing of the Registration Statement,
(2) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 or form of prospectus), and (3) at the
time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Offered Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a
“well known seasoned issuer” as defined in
Rule 405 (“ Rule 405 ”) under the Act,
including not having been an “ineligible issuer” as
defined in Rule 405.
(B)
The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, that
initially became effective within three years of the date of this
Agreement. If immediately prior to the third anniversary (the
“ Renewal Deadline ”) of the initial effective
date of the Registration Statement, any of the Offered Securities
remain unsold by the Underwriters, the Company will prior to the
Renewal Deadline file, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement
relating to the Offered Securities, in a form satisfactory to the
Representatives. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will prior to
the Renewal Deadline, if it has not already done so, file a new
shelf registration statement relating to the Offered Securities, in
a form satisfactory to the Representatives, and will use its best
efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The
Company will take all other action necessary or appropriate to
permit the public offering and sale of the Offered Securities to
continue as contemplated in the expired registration statement
relating to the Offered Securities. References herein to the
Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as
the case may be.
(C)
The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) (“ Rule 401(g)(2)
”) under the Act objecting to use of the automatic shelf
registration statement form. If at any time when Offered Securities
remain unsold by the Underwriters the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating
to the Offered Securities, in a form satisfactory to the
Representatives, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all
other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in
the registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective
amendment, as the case may be.
(D)
The Company has paid or shall pay the required Commission filing
fees relating to the Offered Securities within the time required by
Rule 456(b)(1) under the Act
3
without regard
to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) under the Act.
(iv) (A) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the
Offered Securities and (B) at the date of this Agreement, the
Company was not and is not an “ineligible issuer,” as
defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted
of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in
Rule 405 and (y) the Company in the preceding three years
not having been the subject of a bankruptcy petition or insolvency
or similar proceeding, not having had a registration statement be
the subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act
in connection with the offering of the Offered Securities, all as
described in Rule 405.
(v) As of the
Applicable Time, neither (i) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time,
the Statutory Prospectus and the documents listed on and
disclosures contained in Schedule D hereto, all considered
together (collectively, the “ General Disclosure
Package ”), nor (ii) any individual Limited Use
Issuer 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. The
preceding sentence does not apply to statements in or omissions
from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c) hereof.
(vi) 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
Offered Securities or until any earlier date that the Company
notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) the Company has promptly notified or will promptly notify
the Representatives and (ii) the Company has promptly amended
or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free
4
Writing
Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 8(c) hereof.
(vii) The Company
has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the General Disclosure Package; 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 or in good standing 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 ”).
(viii) Set forth
on Schedule E hereto is a complete list of all
“significant subsidiaries” (as such term is defined in
Rule 1-02(w) of Regulation S-X promulgated under the Act)
of the Company that satisfy the test set forth in Rule 1-02(w)
of Regulation S-X on an individual basis (the “
Individual Significant Subsidiaries ”) and all other
subsidiaries of the Company that satisfy the test set forth in
Rule 1-02(w) of Regulation S-X on an aggregate basis (the
“ Aggregate Significant Subsidiaries ” and,
together with the Individual Significant Subsidiaries, the “
Significant Subsidiaries ”). Other than the
Significant Subsidiaries, there are no other subsidiaries of the
Company that, individually or in the aggregate, are
“significant subsidiaries” (as such term is defined in
Rule 1-02(w) of Regulation S-X promulgated under the
Act). Other than the Individual Significant Subsidiaries, there are
no other subsidiaries of the Company that individually would
constitute “significant subsidiaries” (as such term is
defined in Rule 1-02(w) of Regulation S-X promulgated under
the Act, substituting 6% for the 10% threshold contained in such
rule).
(ix) Each of the
Significant Subsidiaries has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
Significant Subsidiary of 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 or in good standing would not
individually or in the aggregate have a Material Adverse Effect;
all of the issued and outstanding capital stock of each Significant
Subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and, except as
disclosed in the General Disclosure Package, the capital stock of
each Significant Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(x) The Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of
capital stock of the
5
Company are
validly issued, fully paid and nonassessable and conform to the
information in the General Disclosure Package and to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect
to its Common Stock.
(xi) Except as
disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder’s fee or
other like payment in connection with the sale of the Offered
Securities.
(xii) Other than
the Registration Rights Agreement dated as of March 15, 2005
between the Company and Lane Industries, Inc. (the “
Registration Rights Agreement ”), there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(xiii) The Offered
Securities have been approved for listing on the New York Stock
Exchange, subject to notice of issuance.
(xiv) No consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained
or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the
Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities
laws.
(xv) The
execution, delivery and performance of this Agreement and the sale
of the Offered Securities will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, (i) 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 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, or (iii) the charter or by-laws of the Company or any
such subsidiary, except, in the case of clauses (i) and
(ii) above for such breaches, violations or defaults as would
not result in a Material Adverse Effect.
(xvi) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xvii) Except as
disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all material real
properties and all other material properties and assets owned by
them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere
with the
6
use made or to
be made thereof by them; and except as disclosed in the General
Disclosure Package, the Company and its subsidiaries hold any
material leased real or personal property under valid and
enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by
them.
(xviii) 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.
(xix) No labor
dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent that might have a
Material Adverse Effect.
(xx) The Company
and its subsidiaries own, possess or can acquire on reasonable
terms sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets,
inventions, technology, know-how and other intellectual property
and similar rights, including registrations and applications for
registration thereof (collectively, “ Intellectual
Property Rights ”) necessary or material to the conduct
of the business now conducted or proposed in the General Disclosure
Package to be conducted by them, and the expected expiration of any
such Intellectual Property Rights would not, individually or in the
aggregate, have a Material Adverse Effect. Except as disclosed in
the General Disclosure Package (i) there are no rights of
third parties to any of the Intellectual Property Rights owned by
the Company or its subsidiaries; (ii) there is no material
infringement, misappropriation, breach, default or other violation,
or the occurrence of any event that with notice or the passage of
time would constitute any of the foregoing, by the Company, its
subsidiaries or, to the knowledge of the Company, third parties of
any of the Intellectual Property Rights of the Company or its
subsidiaries; (iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s or any subsidiary’s rights in
or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any
facts which would form a reasonable basis for any such claim;
(iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the validity, enforceability or scope of any such Intellectual
Property Rights, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (v) there is
no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company or any
subsidiary infringes, misappropriates or otherwise violates or
conflicts with any Intellectual Property Rights or other
proprietary rights of others and the Company is unaware of any
other fact which would form a reasonable basis for any such claim;
and (vi) none of the Intellectual Property Rights used by the
Company or its subsidiaries in their businesses has been obtained
or is being used by the Company or its subsidiaries in violation of
any contractual obligation binding on the Company or any of its
subsidiaries in violation of the rights of any persons, except in
each case covered by clauses (i) – (vi) such as
would
7
not, if
determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, have a Material Adverse
Effect.
(xxi) Except as
disclosed in the General Disclosure Package, (a)(i) neither the
Company nor any of its subsidiaries is in violation of, or has any
liability under, any federal, state, local or non-U.S. statute,
law, rule, regulation, ordinance, code, other requirement or rule
of law (including common law), or decision or order of any domestic
or foreign governmental agency, governmental body or court,
relating to pollution, to the use, handling, transportation,
treatment, storage, discharge, disposal or release of Hazardous
Substances, to the protection or restoration of the environment or
natural resources (including biota), to health and safety including
as such relates to exposure to Hazardous Substances, and to natural
resource damages (collectively, “ Environmental Laws
”), (ii) neither the Company nor any of its subsidiaries
owns, occupies, operates or uses any real property contaminated
with Hazardous Substances, (iii) neither the Company nor any
of its subsidiaries is conducting or funding any investigation,
remediation, remedial action or monitoring of actual or suspected
Hazardous Substances in the environment, (iv) neither the
Company nor any of its subsidiaries is liable or allegedly liable
for any release or threatened release of Hazardous Substances,
including at any off-site treatment, storage or disposal site,
(v) neither the Company nor any of its subsidiaries is subject
to any claim by any governmental agency or governmental body or
person relating to Environmental Laws or Hazardous Substances and
(vi) the Company and its subsidiaries have received and are in
compliance with all, and have no liability under any, permits,
licenses, authorizations, identification numbers or other approvals
required under applicable Environmental Laws to conduct their
respective businesses, except in each case covered by clauses (i)
– (vi) such as would not individually or in the
aggregate have a Material Adverse Effect; (b) to the
Company’s knowledge there are no facts or circumstances that
would reasonably be expected to result in a violation of, liability
under, or claim pursuant to any Environmental Law that would have a
Material Adverse Effect; (c) to the Company’s knowledge
there are no requirements proposed for adoption or implementation
under any Environmental Law that would reasonably be expected to
have a Material Adverse Effect; and (d) the Company has
reasonably concluded that such Environmental Laws are not
reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect. For purposes of this subsection “
Hazardous Substances ” means (A) petroleum and
petroleum products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated biphenyls
and mold, and (B) any other chemical, material or substance
defined or regulated as toxic or hazardous or as a pollutant,
contaminant or waste under Environmental Laws.
(xxii) Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or 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 this Agreement, or which
are otherwise material in the context of the sale of the
8
Offered
Securities; and no such actions, suits or proceedings are
threatened or, to the Company’s knowledge,
contemplated.
(xxiii) The
financial statements included in the Registration Statement and the
General Disclosure Package 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, except as otherwise disclosed in the General Disclosure
Package, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro
forma financial statements included in the Registration Statement
and the General Disclosure Package provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, 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.
(xxiv) Except as
disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General
Disclosure Package there has been no material adverse change, nor
any development or event involving 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, and, except as disclosed in or contemplated by the
General Disclosure Package, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(xxv) The Company
is subject to the reporting requirements of either Section 13
or Section 15(d) of the Securities Exchange Act of 1934 and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(xxvi) The Company
is not an “investment company” as defined in the
Investment Company Act of 1940.
(xxvii) The
Company (A) makes and keeps accurate books and records and
(B) maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (w) transactions
are executed in accordance with management’s general or
specific authorizations, (x) transactions are recorded as
necessary to permit preparation of the Company’s financial
statements in conformity with accounting principles generally
accepted in the United States and to maintain accountability for
its assets, (y) access to the Company’s assets is
permitted only in accordance with management’s general or
specific authorization and (z) the recorded accountability for
the Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
9
(xxviii) The
Company will be in compliance, in all material respects, with the
applicable provisions of the Sarbanes-Oxley Act of 2002 and the
applicable rules and regulations thereunder upon the applicability
of such provisions, rules or regulations, as the case may be, to
the Company.
(xxix) Each of the
Company, its subsidiaries, its affiliates and any of their
respective officers, directors, supervisors, managers, agents, or
employees has not violated, and its participation in the offering
will not violate, any of the following laws: (a) anti-bribery
laws, including, but not limited to, any applicable law, rule or
regulation of any locality, including, but not limited to any law,
rule or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions, signed December 17, 1997, including the
U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule
or regulation of similar purpose and scope, (b) anti-money
laundering laws, including, but not limited to, applicable federal,
state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including,
without limitation, Title 18 U.S. Code section 1956 and 1957, the
Patriot Act, the Bank Secrecy Act and international anti-money
laundering principals or procedures by an intergovernmental group
or organization, such as the Financial Action Task Force on Money
Laundering, of which the United States is a member and with which
designation the United States representative to the group or
organization continues to concur, all as amended, and any executive
order, directive or regulation pursuant to the authority of any of
the foregoing, or any orders or licenses issued thereunder or
(c) laws and regulations imposing U.S. economic sanctions
measures, including, but not limited to, the International
Emergency Economic Powers Act, the Trading with the Enemy Act, the
United Nations Participation Act and the Syria Accountability and
Lebanese Sovereignty Act, all as amended, and any executive order,
directive or regulation pursuant to the authority of any of the
foregoing, including the regulations of the United States Treasury
Department set forth under 31 CFR, Subtitle B, Chapter V, as
amended, or any orders or licenses issued thereunder, except in
each case for matters that would not, individually or in the
aggregate, result in a Material Adverse Effect. Further, no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any
subsidiary of the Company with respect to any of the foregoing
laws, rules or regulations is pending or, to the knowledge of the
Company, threatened.
(xxx) The Company
and each subsidiary of the Company is in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency, except where any failure to be in compliance
would not, individually or in the aggregate, have a Material
Adverse Effect.
(xxxi) None of the
Company, any subsidiary of the Company or any director, officer,
agent, employee or affiliate of the Company or any subsidiary of
the Company is
10
currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury.
(xxxii) The
Company and its subsidiaries have filed all federal, state, local
and non-U.S. tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect); and,
except as set forth in the General Disclosure Package, the Company
and its subsidiaries have paid all taxes (including any
assessments, fines or penalties) required to be paid by them,
except for any such taxes, assessments, fines or penalties
currently being contested in good faith or as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(xxxiii) The
Company and its subsidiaries are insured by insurers with
appropriately rated claims paying abilities against such losses and
risks and in such amounts as are prudent and customary for 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;
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, except as set forth
in or contemplated in the General Disclosure Package.
(b)
Each Selling Securityholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) Such Selling
Securityholder has and on the Closing Date hereinafter mentioned
will have valid and unencumbered title to the Offered Securities to
be delivered by such Selling Securityholder on the Closing Date and
full right, power and authority to enter into this Agreement, the
power of attorney entered into in connection with this Agreement,
substantially in the form of Exhibit 1 hereto (the
“ Power of Attorney ” and, together with all
other similar agreements executed by the other Selling
Securityholders, the “ Powers of Attorney ”) and
to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Securityholder on the Closing Date under
this Agreement; and upon the delivery of and payment for the
Offered Securities on the Closing Date under this Agreement the
several Underwriters will acquire valid and unencumbered title to
the Offered Securities to be delivered by such Selling
Securityholder on the Closing Date.
(ii) At the time
the Registration Statement initially became effective, at the time
of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether
11
by
post-effective amendment, incorporated report or form of
prospectus) and on the Effective Date relating to the Offered
Securities, the Registration Statement conformed and will conform
in all respects to the requirements of the Act and the Rules and
Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. On the date of this Agreement, the Registration
Statement and the Prospectus each conform in all respects to the
requirements of the Act and the Rules and Regulations, and neither
of such documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the representation and warranty in
this Section 2(b)(ii) shall apply only to the extent that any
statements in or omissions from the Registration Statement or
Prospectus are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Securityholder
specifically for use therein; it being understood that the only
such information furnished in writing to the Company by such
Selling Securityholder specifically for use in the Registration
Statement or the Prospectus is that information described in
Section 8(b) of this Agreement.
(iii) As of the
Applicable Time, neither (i) the General Disclosure Package,
nor (ii) any individual Limited Use Issuer 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. Notwithstanding the foregoing, the
representation and warranty in this Section 2(b)(iii) shall
apply only to the extent that any statements in or omissions from
any prospectus included in the Registration Statement or any Issuer
Free Writing Prospectus are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Securityholder specifically for use therein; it being understood
that the only such information furnished in writing to the Company
by such Selling Securityholder specifically for use in the
Registration Statement or any Issuer Free Writing Prospectus is
that information described in Section 8(b) of this
Agreement.
(iv) 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
Offered Securities or until any earlier date that such Selling
Securityholder notified or notifies the Representatives as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement.
If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information then contained in the
Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time,
not misleading, (i) such Selling Securityholder has promptly
notified or will promptly notify the Representatives and
(ii) such Selling Securityholder has caused or will cause the
Company promptly to amend or supplement
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such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. Notwithstanding the foregoing, the
representation and warranty in this Section 2(b)(iv) shall
apply only to the extent that any statements in or omissions from
any Issuer Free Writing Prospectus are made in reliance upon and in
conformity with written information furnished to the Company by
such Selling Securityholder specifically for use therein; it being
understood that the only such information furnished in writing to
the Company by such Selling Securityholder specifically for use in
any Issuer Free Writing Prospectus is that information described in
Section 8(b) of this Agreement.
(v) The sale of
the Firm Stock and the Optional Stock by such Selling
Securityholder pursuant hereto is not prompted by any material or
non-public information concerning the Company or any of its
subsidiaries which is not set forth in the Registration Statement,
the General Disclosure Package and the Prospectus or the documents
incorporated by reference therein. The information pertaining to
such Selling Securityholder and its ownership of Common Stock under
the caption “Principal and Selling Stockholders” in the
Registration Statement and the Prospectus (and any similar section
or information contained in the General Disclosure Package) is
complete and accurate in all material respects.
(vi) Except as
disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between such Selling
Securityholder and any person that would give rise to a valid claim
against such Selling Securityholder or any Underwriter for a
brokerage commission, finder’s fee or other like payment in
connection with the sale of the Offered Securities.
(vii) No consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained
or made by any Selling Securityholder fo
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