Exhibit 1.2
EXECUTION VERSION
Jarden Corporation
$100,000,000
7
1
/
2 % Senior
Subordinated Notes due 2017
Underwriting Agreement
New York, New York
February 12, 2007
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Jarden Corporation,
a Delaware corporation (the “ Company ”),
proposes to issue and sell to Lehman Brothers Inc. (the “
Underwriter ”) $100,000,000 aggregate principal
amount of its 7 1 / 2 % Senior
Subordinated Notes due 2017 (the “ Notes
”) guaranteed (the “ Guarantees ”)
by the Company’s domestic subsidiaries signatory hereto
(collectively, the “ Guarantors ”). The
Notes will be issued pursuant to the terms of an indenture (the
“ Base Indenture ”), to be dated
February 13, 2007, among the Company and The Bank of New York,
as Trustee (the “ Trustee ”), as
supplemented by the First Supplemental Indenture to be dated as of
February 13, 2007 and the Second Supplement Indenture to be
dated the Closing Date (as defined in Section 3) (the “
Supplemental Indentures ” and, together with
the Base Indenture, the “ Indenture ”),
among the Company, the Guarantors and the Trustee. The use of the
neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Any reference herein to the Registration
Statement, the Disclosure Package, the Base Prospectus, 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 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 21
hereof.
This agreement (this “
Agreement ”) is to confirm the agreement
concerning the purchase of the Notes from the Company by the
Underwriter.
1. Representations and
Warranties .
The Company and the Guarantors,
jointly and severally, represent and warrant to, and agree with,
the Underwriter as set forth below in this
Section 1.
(a) The Company meets the
requirements for the use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 on Form S-3
(File No. 333-140400), including the related Base Prospectus,
for registration under the Act of the offering and sale of the
Notes and related Guarantees. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more Preliminary
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Prospectuses, each of which has
previously been furnished to you. The Company will file with the
Commission a Prospectus relating to the Notes in accordance with
Rule 424(b). As filed, the Prospectus shall contain all information
required by the Act and the rules thereunder, and, except to the
extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the
Registration Statement did, and when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder;
the Registration Statement or any amendment thereto, did not at the
time such Registration Statement or any amendment (or any part
thereof) became effective contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained
therein, not misleading; and the Prospectus (together with any
supplement thereto) as of its date and the Closing Date will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement
or the Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of the Underwriter specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement
thereto), it being understood and agreed that the only such
information furnished by or on behalf of the Underwriter consists
of the information described as such in Section 9
hereof.
(c) The Disclosure Package did not,
as of the Execution Time, contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Each road show that is
an Issuer Free Writing Prospectus but not required to be filed
pursuant to Rule 433 when taken together as a whole with the
Disclosure Package did not, as of the Execution Time, contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentences do not apply to statements in
or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of
the Underwriter consists of the information described as such in
Section 9 hereof.
(d) (i) At the time of filing the
Registration Statement, (ii) 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
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Notes in reliance on the exemption
in Rule 163, and (iv) at the Execution Time (with such date
being used as the determination date for purposes of this clause
(iv)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule 405.
The Company agrees to pay the fees required by the Commission
relating to the Notes within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r).
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(e) (i) 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)) of the Notes and (ii) as of the
Execution Time (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information then contained in the Registration Statement, including
any document incorporated therein and any prospectus supplement
deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity
with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of
the Underwriter consists of the information described as such in
Section 9 hereof.
(g) The Company’s Annual
Report on Form 10-K for the year ended December 31, 2005 and
Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2006, June 30, 2006 and September 30,
2006 incorporated by reference in the Disclosure Package and the
Prospectus, comply in all material respects with the requirements
of the Exchange Act, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement and prior to or
on the Closing Date, when they are filed with the Commission, shall
conform in all material respects with the requirements of the
Exchange Act, and when read together with the other information in
the Disclosure Package or the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(h) The Company is subject to and in
full compliance with the reporting requirements of Section 13
or Section 15(d) of the Exchange Act.
(i) Each of the Company and the
Guarantors has been duly incorporated or organized and is validly
existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate or limited liability
company power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Disclosure Package and the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification, except where the failure to be in good standing or
duly qualified (i) could not reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation the transactions contemplated hereby; or
(ii) could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a “
Material Adverse Effect ”). Other than the
subsidiaries listed on Schedule C hereto (the “
Significant Subsidiaries ,” and each a “
Significant Subsidiary ”), the Company does not
have any “significant subsidiary,” as that term is
defined in Rule 1-02(w) of Regulation S-X under the Act.
(j) All the outstanding shares of
capital stock, or equity interests in the case of a limited
liability company, of each subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except for directors’ qualifying or nominal shares or as
otherwise disclosed in the Disclosure Package and the Prospectus,
all outstanding shares of capital stock or other equity interests
of the subsidiaries are owned by the Company either
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directly or through wholly-owned,
except for directors’ qualifying or nominal shares,
subsidiaries free and clear of any perfected security interest or
any other security interests, claims or liens, except for any such
perfected security interest or any other security interests, claims
or liens that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(k) The Company’s authorized
capitalization is as set forth under the heading
“Capitalization” in the Disclosure Package and
Prospectus (other than for subsequent issuances, if any, pursuant
to employee benefit plans or upon the exercise of outstanding
options or warrants described in the Disclosure Package and the
Prospectus). All outstanding shares of capital stock of the Company
have been duly and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar
rights.
(l) There is no franchise, contract
or other document of a character required to be described in the
Registration Statement, the Disclosure Package or the Prospectus,
or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements in the Disclosure Package and
the Prospectus under the headings “Description of Other
Indebtedness,” “Description of Notes” and
“Material U.S. Federal Income Tax Considerations” and
the statements in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2005 under “Item 3.
– Legal Proceedings” and in the Company’s
Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2006, June 30, 2006 and September 30,
2006 under “Item 1. – Legal Proceedings”
incorporated by reference in the Disclosure Package and the
Prospectus insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair summaries in all material respects of such legal
matters, agreements, documents or proceedings.
(m) This Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors.
(n) The Indenture has been duly and
validly authorized by the Company and each of the Guarantors, and
when duly executed and delivered by the Company and each of the
Guarantors (assuming due authorization, execution and delivery by
the Trustee), will constitute a legal, valid and binding agreement
of the Company and each of the Guarantors enforceable against the
Company and each of the Guarantors in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws relating to or affecting
creditors’ rights generally and general equitable principles
(regardless of whether such enforceability is considered a
proceeding in equity or at law). The Indenture (i) has been
duly qualified under the Trust Indenture Act of 1939, as amended
(the “ Trust Indenture Act ”) and
(ii) complies in all material respects as to form with the
requirements of the Trust Indenture Act.
(o) The Notes have been duly and
validly authorized by the Company and when duly issued by the
Company in accordance with the Indenture and, assuming due
authentication of the Notes by the Trustee, when delivered to the
Underwriter against payment therefor in accordance with the terms
of this Agreement, will have been validly issued and delivered, and
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws relating to or affecting creditors’ rights
generally and general equitable principles (regardless of whether
such enforceability is considered a proceeding in equity or at
law).
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(p) The Guarantees have been duly
and validly authorized by each of the Guarantors and, when duly
endorsed on the Notes in accordance with the Indenture and assuming
due authentication of the Notes by the Trustee, upon delivery to
the Underwriter against payment therefor in accordance with the
terms of this Agreement, will have been validly issued and
delivered, and will constitute legal, valid and binding obligations
of each of the Guarantors entitled to the benefits of the Indenture
and enforceable against each of the Guarantors in accordance with
their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws relating to
or affecting creditors’ rights generally and general
equitable principles (regardless of whether such enforceability is
considered a proceeding in equity or at law).
(q) Neither the Company nor any
Guarantor is, or, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described
under the heading “Use of Proceeds” in the Disclosure
Package and the Prospectus, will be an “investment
company” as defined in the Investment Company Act of 1940, as
amended.
(r) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated hereby, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Notes by the Underwriter in the manner contemplated herein and
in the Disclosure Package and the Prospectus.
(s) The execution, delivery and
performance of this Agreement and the issuance of the Notes by the
Company and the Guarantees by the Guarantors and the consummation
of the transactions contemplated hereby have been duly authorized
by all necessary corporate or limited liability, as the case may
be, action and will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the certificate of incorporation, by-laws or
other organizational documents of the Company or any of its
subsidiaries, (ii) subject to the entering into of the
Amendment, the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company
or any of its subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties; except in the case
of clauses (ii) and (iii) for such conflicts, breaches or
violations that could not reasonably be expected to have a Material
Adverse Effect.
(t) No holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement.
(u) The consolidated historical
financial statements and schedules of (i) the Company and its
consolidated subsidiaries, (ii) AHI (as defined herein) and
(iii) Holmes (as defined herein) included or incorporated by
reference in the Disclosure Package, the Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles throughout
the periods involved (except as otherwise noted
therein).
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(v) No action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or
its or their property is pending or, to the best knowledge of the
Company, threatened that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(w) The Company and each of its
Significant Subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Disclosure Package and the Prospectus and such as do not materially
affect the value of the property of the Company and its
subsidiaries taken as a whole and do not materially interfere with
the use made and proposed to be made of such property by the
Company or any of its Significant Subsidiaries; and all real
property and buildings held under lease by the Company or any of
its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as could
not reasonably be expected to have a Material Adverse
Effect.
(x) Neither the Company nor any
subsidiary is in violation or default of (i) any provision of
its certificate of incorporation, by-laws or other organizational
document, other than dormant, inactive or immaterial subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, other than such defaults in the case of
clauses (ii) and (iii) which could not, individually or
in the aggregate, have a Material Adverse Effect.
(y) Ernst & Young LLP, who
have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included or incorporated by reference in the Disclosure Package and
the Prospectus, are independent public accountants with respect to
the Company within the meaning of the Act.
(z) Deloitte & Touche LLP,
who have certified certain financial statements of American
Household, Inc. and its consolidated subsidiaries (collectively,
“ AHI ”) and delivered their report with
respect to the audited consolidated financial statements and
schedules included or incorporated by reference in the Disclosure
Package and the Prospectus, were independent public accountants
with respect to AHI within the meaning of the Act.
(aa) PricewaterhouseCoopers LLP, who
have certified certain financial statements of The Holmes Group,
Inc. and its consolidated subsidiaries (collectively, “
Holmes ”) and delivered their report with
respect to the audited consolidated financial statements and
schedules included or incorporated by reference in the Disclosure
Package and the Prospectus, were independent public accountants
with respect to Holmes within the meaning of the Act.
(bb) The Company has filed all
foreign, federal, state and local 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, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto)
and has timely paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to
the
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extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or with respect to
which the failure to pay would not have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement
thereto).
(cc) No labor problem or dispute
with the employees of the Company or any of its subsidiaries exists
or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers, that could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(dd) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are adequate and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of
its subsidiaries under any such policy or instrument as to which
any insurance company is denying liability except as have been
disclosed by the Company or the denial of which could not
reasonably be expected to have a Material Adverse Effect; 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 could not
reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(ee) No subsidiary of the Company is
currently prohibited, directly or indirectly from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to
the Company or any other subsidiary of the Company, except as
described in or contemplated by the Disclosure Package and the
Prospectus (exclusive of any supplement thereto) or as set forth on
Schedule 2(ee) .
(ff) The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, except where the failure to have such license,
certificate, permit or authorization could not reasonably be
expected to have a Material Adverse Effect, and neither the Company
nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(gg) The Company and its
subsidiaries, taken as a whole, maintain adequate internal controls
over financial reporting as defined in Rules 13a-15(f) and
15d-15(f) under the Exchange Act designed to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with accounting principles generally accepted in the
United States of America (“ GAAP ”); the
Company’s internal
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controls over financial reporting
include those polices and procedures that (i) pertain to the
maintenance of records that, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the assets of
the Company; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of
financial statements in accordance with GAAP, and that receipts and
expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and
(iii) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or disposition of
the Company’s assets that could have a material effect on the
financial statements. The Company and its subsidiaries’
internal controls over financial reporting are effective as of the
effective date and the Company and its subsidiaries are not aware
of any material weakness in their internal control over financial
reporting.
(hh) The Company and its
subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act); such disclosure controls and procedures are
effective.
(ii) Neither the Company nor any of
its subsidiaries has taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Notes.
(jj) The Company and its
subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not
received notice of any actual or potential liability under any
environmental law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(kk) In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(ll) The Company and its
subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property necessary for the conduct
of the Company’s business (collectively, the “
Intellectual Property ”) as now conducted or as
proposed to be conducted in the Disclosure Package and the
Prospectus, except where the failure to own, possess, license or
have other rights to use such Intellectual Property would not
reasonably be expected to have a Material Adverse Effect. To the
Company’s knowledge, there are no rights of
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third parties to any of the
Intellectual Property (other than the rights of licensors in
Intellectual Property that is licensed to the Company and its
subsidiaries or such rights that are not inconsistent with the
Company’s rights), except for any such rights of third
parties that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the
Company’s knowledge, there is no infringement by third
parties of any of the Intellectual Property, except for any such
infringement by third parties that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. There is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the Company’s rights in or to any of the Intellectual
Property, except for any such action, suit, proceeding or claim
that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any of the Intellectual Property, except for any such action, suit,
proceeding or claim that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, and the Company is unaware of any facts that would form a
reasonable basis for such action, suit, proceeding or claim. There
is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, except for any
such action, suit, proceeding or claim that would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(mm) The minimum funding standard
under Section 302 of the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder (“
ERISA ”), has been satisfied by each
“pension plan” (as defined in Section 3(2) of
ERISA) which has been established or maintained by the Company
and/or one or more of its subsidiaries, and the trust forming part
of each such plan which is intended to be qualified under
Section 401 of the Code is so qualified, except where the
failure of the pension plan to satisfy such minimum funding
standards would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; each of the Company
and its subsidiaries has fulfilled its obligations, if any, under
Section 515 of ERISA; except as set forth on Schedule
2(mm) , each pension plan and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance
