Exhibit 99.1
EXECUTION COPY
KOPPERS HOLDINGS INC.
1,610,000 Shares
Common Stock
($0.01 par value per Share)
Underwriting Agreement
February 26, 2007
Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue
New York, NY 10010
Ladies and Gentlemen:
Each person or entity identified as
a selling stockholder, in Schedule C annexed hereto
(each, a “ Selling Stockholder ”) proposes to
sell to Credit Suisse Securities (USA) LLC (the “
Underwriter ”), an aggregate of 1,610,000 shares
(the “ Firm Shares ”) of common stock, $0.01 par
value per share (the “ Common Stock ”), of
Koppers Holdings Inc. a Pennsylvania corporation (the “
Company ”). The number of Firm Shares to be sold by
each Selling Stockholder is the number of Firm Shares set forth
opposite the name of such Selling Stockholder in
Schedule C annexed hereto. In addition, solely for the
purpose of covering over-allotments, the Selling Stockholders
identified as “Saratoga Selling Stockholders” in
Schedule C annexed hereto (the “ Saratoga Selling
Stockholders ”) propose to grant to the Underwriter the
option to purchase from the Saratoga Selling Stockholders up to an
additional 241,500 shares of Common Stock (the “
Additional Shares ”). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred
to as the “ Shares .” The Shares are described
in the Prospectus which is referred to below.
The Company has prepared and filed,
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively,
the “ Act ”), with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-136329) under the Act (the
“ registration statement ”), including a
prospectus, which registration statement incorporates by reference
documents which the Company has filed, or will file, in accordance
with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively,
the “ Exchange Act ”). Amendments to such
registration statement, if necessary or appropriate, have been
similarly prepared and filed with the Commission in accordance with
the Act. Such registration statement, as so amended, has become
effective under the Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
Underwriter (the “ Effective Time ”), including
(i) all documents filed as a part thereof or incorporated or
deemed to be incorporated by reference therein, (ii) any
information contained or incorporated by reference in a prospectus
filed with the Commission pursuant to Rule 424(b) under the
Act, to the extent such information is deemed, pursuant to
Rule 430B or Rule 430C
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under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act.
Except where the context otherwise
requires, “ Pre-Pricing Prospectus ,” as used
herein, means the basic prospectus included in the Registration
Statement as of the date hereof, including all documents
incorporated by reference therein. Except where the context
otherwise requires, “ Basic Prospectus ,” as
used herein, means any such basic prospectus furnished to you by
the Company and attached to or used with the Prospectus Supplement
(as defined below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day
after the date hereof (or such earlier time as may be required
under the Act), in the form furnished by the Company to you for use
by the Underwriter and by dealers in connection with the offering
of the Shares.
Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“ Disclosure Package
,” as used herein, means the Pre-Pricing Prospectus and the
Price to Investors.
“ Price to Investors
,” as used herein, means as to each investor in the Shares,
the price per share paid by such investor and the number of shares
purchased by such investor.
Any reference herein to the
registration statement, the Registration Statement, the Basic
Prospectus, the Pre-Pricing Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein (the “ Incorporated
Documents ”), including, unless the context otherwise
requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “
amend ,” “ amendment ” or “
supplement ” with respect to the Registration
Statement, the Basic Prospectus, the Pre-Pricing Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of the Basic Prospectus, the Pre-Pricing Prospectus, the
Prospectus Supplement or the Prospectus, and deemed to be
incorporated therein by reference.
As used in this Agreement, “
business day ” shall mean a day on which the
New York Stock Exchange (the “ NYSE ”) is
open for trading. The terms “herein,”
“hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used
herein, is not exclusive.
The Company, each of the Selling
Stockholders and the Underwriter agree as follows:
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1. Sale and Purchase. Upon
the basis of the representations and warranties and subject to the
terms and conditions herein set forth, each of the Selling
Stockholders agrees to sell, in each case severally and not
jointly, to the Underwriter, and the Underwriter agrees to purchase
from each Selling Stockholder, the number of Firm Shares set forth
in Schedule C annexed hereto, subject to adjustment in
accordance with Section 11 hereof, in each case at a purchase
price of $25.12 per Share. The Company is advised by you that
the Underwriter intends (i) to make a public offering of their
respective portions of the Firm Shares as soon after the
effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Saratoga Selling
Stockholders, in each case severally and not jointly, hereby grant
to the Underwriter the option (the “ Over-Allotment
Option ”) to purchase, and upon the basis of the
representations and warranties and subject to the terms and
conditions herein set forth, the Underwriter shall have the right
to purchase from the Saratoga Selling Stockholders all or a portion
of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm
Shares, at the same purchase price per share to be paid by the
Underwriter to the Selling Stockholders for the Firm Shares. The
Over-Allotment Option may be exercised by the Underwriter at any
time and from time to time on or before the thirtieth day following
the date of the Prospectus Supplement, by written notice to the
Saratoga Selling Stockholders. Such notice shall set forth the
aggregate number of Additional Shares as to which the
Over-Allotment Option is being exercised and the date and time when
the Additional Shares are to be delivered (any such date and time
being herein referred to as an “ additional time of
purchase ”); provided , however , that no
additional time of purchase shall be earlier than the “time
of purchase” (as defined below) nor earlier than the second
business day after the date on which the Over-Allotment Option
shall have been exercised nor later than the tenth business day
after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to the
Underwriter shall be subject to adjustment in accordance with
Section 11 hereof. Upon any exercise of the Over-Allotment
Option, the number of Additional Shares to be purchased from each
Saratoga Selling Stockholder shall be the number which bears the
same proportion to the aggregate number of Additional Shares being
purchased as the number of Additional Shares set forth opposite the
name of such Saratoga Selling Stockholder in Schedule C
annexed hereto bears to the total number of Additional Shares in
Schedule C , subject, in each case, to such adjustment
as the Underwriter may determine solely to eliminate fractional
shares.
Pursuant to Custody Agreements
between each Selling Stockholder and Mellon Investor Services LLC
dated February 26, 2007 (each, a “Custody
Agreement”), Mellon Investor Services LLC shall act as
representative of the Selling Stockholders. The foregoing
representative (the “ Representative of the Selling
Stockholders” ) is authorized to cause all or any portion
of the Shares to be transferred on the books of the Company into
such names as the Underwriter shall have instructed in writing and
to make appropriate book-entry transfers representing such Shares
for the account of the Underwriter, to receive the proceeds of the
sale of such Shares, to give receipts for such proceeds, to pay
therefrom the expenses to be borne by such Selling Stockholder in
connection with the sale and public offering of the Shares, to
distribute the balance of such proceeds to such Selling
Stockholder, to receive notices on behalf
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of such Selling Stockholder and to take such
other action as may be necessary or desirable in connection with
the transactions contemplated by this Agreement.
2. Payment and Delivery.
Payment of the purchase price for the Firm Shares shall be made to
each Selling Stockholder by Federal Funds wire transfer against
delivery of the certificates for the Firm Shares to you through the
facilities of The Depository Trust Company (“ DTC
”) for the account of the Underwriter. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on
March 2, 2007 (unless another time shall be agreed to by you
and the Representative of the Selling Stockholders or unless
postponed in accordance with the provisions of Section 11
hereof). The time at which such payment and delivery are to be made
is hereinafter sometimes called the “ time of purchase
.” Electronic transfer of the Firm Shares shall be made to
you at the time of purchase in such names and in such denominations
as you shall specify.
Payment of the purchase price for
the Additional Shares shall be made at the additional time of
purchase in the same manner and at the same office as the payment
for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such
names and in such denominations as you shall specify.
Deliveries of the documents
described in Section 9 hereof with respect to the purchase of
the Shares shall be made at the offices of Cravath,
Swaine & Moore LLP at 825 Eighth Avenue,
New York, NY 10019, at 9:00 A.M., New York City
time, on the date of the closing of the purchase of the Firm
Shares.
3. Representations and Warranties
of the Company. The Company represents and warrants to and
agrees with the Underwriter that:
(a) the Registration Statement has
heretofore become effective under the Act or, with respect to any
registration statement to be filed to register the offer and sale
of Shares pursuant to Rule 462(b) under the Act, will be filed
with the Commission and become effective under the Act no later
than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop
order of the Commission preventing or suspending the use of the
Basic Prospectus, the Pre-Pricing Prospectus, the Prospectus
Supplement or the Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission;
(b) the Registration Statement
complied when it became effective, complies as of the date hereof
and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, will
comply, in all material respects, with the requirements of the Act;
the conditions to the use of Form S-3 in connection with the
offering and sale of the Shares as contemplated hereby have been
satisfied; the Registration Statement meets, and the offering and
sale of the Shares as contemplated hereby complies with, in all
material respects the requirements of Rule 415 under the Act;
the Registration Statement did not, as of the Effective Time,
contain an
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untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the
Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material
respects with the requirements of the Act; at no time during the
period that begins on the earlier of the date of the Pre-Pricing
Prospectus and the date the Pre-Pricing Prospectus was filed with
the Commission and ends at the time of purchase did or will the
Pre-Pricing Prospectus, as then amended or supplemented, taken
together with the Price to Investors, include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no
time during such period did or will the Pre-Pricing Prospectus, as
then amended or supplemented, taken together with the Price to
Investors, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the Basic Prospectus complied or will comply,
as of its date and the date it was or will be filed with the
Commission, complies as of the date hereof (if filed with the
Commission on or prior to the date hereof) and, at the time of
purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of the Basic Prospectus and the date the
Basic Prospectus was filed with the Commission and ends at the time
of purchase did or will the Basic Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and at no time during such period
did or will the Basic Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; each of the Prospectus Supplement and the Prospectus
will comply, as of the date that it is filed with the Commission,
the date of the Prospectus Supplement, the time of purchase, each
additional time of purchase, if any, and at all times during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, in all
material respects, with the requirements of the Act (in the case of
the Prospectus, including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase, each additional time of purchase, if
any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will any Prospectus
Supplement or the Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided , however , that the Company
makes no representation or warranty in this Section 3(b) with
respect to any statement
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contained in the Registration
Statement, the Pre-Pricing Prospectus or the Prospectus in reliance
upon and in conformity with information concerning the Underwriter
and furnished in writing by or on behalf of the Underwriter through
you to the Company expressly for use in the Registration Statement,
the Pre-Pricing Prospectus or the Prospectus; each Incorporated
Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable,
complied, in all material respects, with the requirements of the
Exchange Act and did not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) prior to the execution of this
Agreement, the Company has not, directly or indirectly, used any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Pre-Pricing Prospectus;
(d) the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the Commonwealth of Pennsylvania, with corporate power
and authority to own its properties and conduct its business as
described in the Registration Statement, the Pre-Pricing Prospectus
and the Prospectus; 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 otherwise), business, properties,
prospects or results of operations of the Company and the
Subsidiaries (as defined below) taken as a whole (a “
Material Adverse Effect ”);
(e) each subsidiary of the Company
has been duly incorporated or formed and is an existing corporation
or other entity in good standing under the laws of the jurisdiction
of its incorporation or formation, with corporate power and
authority to own its properties and conduct its business as
described in the Registration Statement, the Pre-Pricing Prospectus
and the Prospectus; each Subsidiary is duly qualified to do
business as a foreign corporation or other entity 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 to be
in good standing would not, individually or in the aggregate,
result in a Material Adverse Effect; all of the issued and
outstanding capital stock or other ownership interest of each of
the Subsidiaries has been duly authorized and validly issued and is
fully paid and nonassessable; the capital stock or other ownership
interest of the Subsidiaries is owned free from liens, encumbrances
and defects other than liens and encumbrances pursuant to Koppers
Inc.’s senior secured credit facility and senior secured
notes; and the entities listed on Schedule D annexed hereto
are the only subsidiaries, direct or indirect, of the Company
(collectively, the “ Subsidiaries ”);
(f) the Shares and all other
outstanding shares of capital stock of the Company have been duly
authorized and have been validly issued, fully paid and
nonassessable and conform, in all material respects, to the
description thereof contained or incorporated by
6
reference in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus; and the
shareholders of the Company have no preemptive rights with respect
to the Shares;
(g) as of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus entitled
“Description of Capital Stock” and “The
Offering”, and, as of the time of purchase, the Company shall
have an authorized and outstanding capitalization as set forth in
the section of the Registration Statement, the Pre-Pricing
Prospectus and the Prospectus entitled “Description of
Capital Stock” and “The Offering”;
(h) except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person that
would give rise to a valid claim against the Company, any of its
subsidiaries or the Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with this
offering;
(i) except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person
granting such person the right to require the Company or any of its
subsidiaries to file a registration statement under the Act with
respect to any securities of the Company or any of its subsidiaries
or to require the Company or any of its subsidiaries to include
such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(j) the Shares are duly listed, and
admitted and authorized for trading on the New York Stock Exchange
(the “ NYSE ”);
(k) 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 Shares, except
such as have been obtained and made under the Act and such as may
be required under state securities laws;
(l) the execution, delivery and
performance of this Agreement, and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (A) 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, (B) 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 (C) the charter, by-laws or other organizational
document of the Company or any of the Subsidiaries, or except in
the case of clause (B), for such
7
breaches, violations or defaults
that would not, individually or in the aggregate, have a Material
Adverse Effect;
(m) this Agreement has been duly
authorized, executed and delivered by the Company;
(n) except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, 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 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 Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, the
Company and its subsidiaries hold any 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;
(o) each of the Company and the
Subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them, except for such
certificates, authorities or permits the lack of which would not,
individually or in the aggregate, have a Material Adverse Effect,
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that would, individually or in the aggregate, have a
Material Adverse Effect;
(p) no labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that would reasonably be
expected to have a Material Adverse Effect;
(q) 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, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that would, individually or in the aggregate, have a Material
Adverse Effect;
(r) except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, the Company and the Subsidiaries and their properties,
assets and operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or
to hold such permits, authorizations or approvals would not be
reasonably expected to, individually or in the aggregate, have a
Material Adverse Effect; except as disclosed in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, there are
no past, present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to materially interfere with
or
8
prevent compliance by the Company or
any Subsidiary with, Environmental Laws; except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, neither the Company nor any of the Subsidiaries
(i) is the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or affected
by any pending or threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or an alleged liability arising
from or relating to any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) except as would not, individually or in the
aggregate, if determined adversely, reasonably be expected to have
a Material Adverse Effect (as used herein, “ Environmental
Law ” means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of,
or exposure to, Hazardous Materials, and “ Hazardous
Materials ” means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances
or wastes) that is regulated by or may give rise to liability under
any Environmental Law);
(s) in the ordinary course of its
business, the Company and each of the Subsidiaries conducts a
periodic review of the effect of the Environmental Laws on their
respective business, operations and properties, for the purpose of
identifying and evaluating associated material costs and
liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, other remedial
activities or compliance with the Environmental Laws or any permit,
license or approval issued under Environmental Laws and any
potential liabilities to third parties);
(t) except as disclosed in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company, any of the Subsidiaries or any of
their respective properties that 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 Shares; and no such actions,
suits or proceedings are, to the Company’s knowledge,
threatened or contemplated;
(u) the financial statements of the
Company included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, together
with the related notes and schedules, present fairly in all
material respects the financial position of the Company and the
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 Registration Statement, the Pre-Pricing Prospectus
and the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and all disclosures
contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, regarding
“non-GAAP financial measures” (as such term is
defined
9
by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Act, to the extent
applicable;
(v) subsequent to the respective
dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, in each
case excluding any amendments or supplements to the foregoing made
after the execution of this Agreement, there has been no
(i) 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 the Subsidiaries taken as a whole, and
(ii) except as disclosed in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock;
(w) 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;
(x) the Company is not an
“investment company” as defined in the Investment
Company Act of 1940;
(y) Ernst & Young LLP,
who have reviewed the financial statements of the Company and the
Subsidiaries included in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus, are, to the best of our
knowledge, independent registered public accountants with respect
to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder;
(z) the Company and each of the
Subsidiaries make and keep accurate books and records and 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
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences;
(aa) the Company has established and
maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in
Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; the Company’s independent auditors and the Audit
Committee of the Board of Directors of the Company have been
advised, based on the Company’s most recent
10
evaluation of such disclosure
controls and procedures, of: (i) all significant deficiencies,
if any, in the design or operation of internal controls which could
adversely affect the Company’s ability to record, process,
summarize and report financial data; and (ii) all fraud, if
any, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls;
all material weaknesses, if any, in internal controls have been
identified to the Company’s independent auditors; except as
disclosed in the Registration Statement, the Pre-Pricing Prospectus
and the Prospectus, or since the date of the most recent evaluation
of such disclosure controls and procedures and internal controls,
there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses; and the Company is taking all
necessary actions to ensure that, upon and at all times after
effectiveness of the Registration Statement, except as disclosed in
the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, the Company and its officers and directors, in their
capacities as such, will be in compliance in all material respects
with the provisions of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”) and the rules and regulations
promulgated in connection therewith, including provisions with
respect to “internal control over financial reporting”
(as such term is defined in Rules 13a-15 and 15d-15 under the
Act), which are applicable at such time to the Company;
(bb) the Company has provided you
true, correct, and complete copies of all documentation pertaining
to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive
officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and since
July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate
of any director or executive officer of the Company; or
(ii) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate
of any director or executive officer, which loan was outstanding on
July 30, 2002; and
(cc) (A) on or before the date
hereof, “lock-up” agreements, each substantially in the
form of Exhibit A hereto (“Lock-Up
Agreements”), relating to sales and certain other
dispositions of shares of Securities or certain other securities,
have been executed and delivered to the Underwriter by those
officers of the Company listed on Schedule E
.
In addition, any certificate signed
by any officer of the Company or any of the Subsidiaries and
delivered to the Underwriter or counsel for the Underwriter in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
4. Representations and Warranties
of the Selling Stockholders. Each Selling Stockholder,
severally and not jointly with the other Selling Stockholders,
represents and warrants to the Underwriter that:
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(a) all written information
furnished to the Company by the Selling Stockholder specifically
for use in the Registration Statement, the Pre-Pricing Prospectus
or the Prospectus (the “ Selling Stockholder
Information ”) complied and will comply in all material
respects with all applicable provisions of the Act; the
Registration Statement (with respect to the Saratoga Selling
Stockholders, Kevin J. Fitzgerald and Thomas D. Loadman, only as
the Registration Statement relates to the Selling Stockholder
Information), did not, as of the Effective Time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; at no time during the period that begins on
the earlier of the date of the Pre-Pricing Prospectus and the date
the Pre-Pricing Prospectus was filed with the Commission and ends
at the time of purchase did or will the Pre-Pricing Prospectus
(with respect to the Saratoga Selling Stockholders, Kevin J.
Fitzgerald and Thomas D. Loadman, only as the Pre-Pricing
Prospectus relates to the Selling Stockholder Information), as then
amended or supplemented, taken together with the Price to
Investors, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and at no time during such period did or will
the Pre-Pricing Prospectus (with respect to the Saratoga Selling
St
