|
Exhibit 1.1
KIMBERLY-CLARK
CORPORATION
UNDERWRITING
AGREEMENT
|
| Kimberly-Clark Corporation |
| 351 Phelps
Drive |
| Irving,
Texas 75038 |
July 25, 2007
Dear Sirs:
The underwriter or
underwriters named in Schedule I hereto (the
“Underwriters”), acting through the firm or firms named
in Schedule I-A hereto as representatives (the
“Representatives”), understand that Kimberly-Clark
Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell $450,000,000 aggregate principal amount
of the Company’s Floating Rate Notes due July 30, 2010
(the “2010 Floating Rate Notes”), $950,000,000
aggregate principal amount of the Company’s 6.125% Notes due
August 1, 2017 (the “2017 Notes”) and $700,000,000
aggregate principal amount of the Company’s 6.625% Notes due
August 1, 2037 (the “2037 Notes”) designated in
Schedule II hereto (collectively, the “Designated
Securities”), registered under the Securities Act of 1933, as
amended (the “Act”) on an “automatic shelf
registration statement” (as defined under Rule 405 under the
Act), on Form S-3 (File No. 333-144828) (the
“Registration Statement”). The Designated Securities
are to be issued under the indenture designated in Schedule II
hereto (the “Indenture”), between the Company and the
trustee designated in such Schedule II. Subject to the terms and
conditions set forth herein or incorporated by reference herein and
referred to below, the Company hereby agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, the principal amount of
such Designated Securities set forth opposite the name of such
Underwriter in such Schedule I at the Purchase Price to
Underwriters set forth in Schedule II hereto. If the firm or firms
named in Schedule I-A hereto include only the firm or firms named
as Underwriters in Schedule I hereto, the terms
“Underwriters” and “Representatives” shall
each be deemed to refer to such firm or firms.
The Underwriters will pay for
such Designated Securities upon delivery thereof at the Closing
Location and on the Date and Time of Delivery set forth in Schedule
II hereto.
The Designated Securities
shall have the terms set forth in Schedule II hereto.
Unless otherwise provided
herein, all the provisions contained in the document entitled
Kimberly-Clark Corporation Underwriting Agreement General Terms and
Conditions, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to
be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein.
This Agreement shall be
construed in accordance with the laws of the State of New
York.
Please confirm your agreement
by (i) having an authorized officer sign a copy of this
Agreement in the space set forth below and (ii) returning the
signed copy to us.
|
|
|
| Very truly yours, |
|
| Citigroup Global Markets Inc. |
|
|
| By |
|
/s/ Brian
Bednarski
|
| Its: |
|
Director
Acting severally on behalf of themselves
and the several Underwriters named in Schedule I attached
hereto
|
|
| Lehman Brothers Inc. |
|
|
| By |
|
/s/ Allen Cutler
|
| Its: |
|
Managing Director
Acting severally on behalf of themselves
and the several Underwriters named in Schedule I attached
hereto
|
|
| J.P. Morgan Securities Inc. |
|
|
| By |
|
/s/ Maria Sramek
|
| Its: |
|
Executive Director
Acting severally on behalf of themselves
and the several Underwriters named in Schedule I attached
hereto
|
|
| Accepted: |
|
| Kimberly-Clark Corporation |
|
|
| By: |
|
/s/ Jolene L.
Varney
|
| Name: |
|
Jolene L.
Varney |
| Title: |
|
Vice
President and Treasurer |
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
Underwriters
|
|
Principal Amount of
2010 Floating Rate Notes
to be
Purchased
|
|
Principal Amount of
2017 Notes
to be
Purchased
|
|
Principal Amount of
2037 Notes
to be
Purchased
|
|
Citigroup Global Markets Inc.
|
|
$ |
56,700,000 |
|
$ |
251,000,000 |
|
$ |
184,000,000 |
|
Lehman Brothers Inc.
|
|
$ |
33,000,000 |
|
$ |
150,000,000 |
|
$ |
111,000,000 |
|
J.P. Morgan Securities Inc.
|
|
$ |
33,000,000 |
|
$ |
150,000,000 |
|
$ |
111,000,000 |
|
Goldman, Sachs & Co.
|
|
$ |
45,000,000 |
|
$ |
95,000,000 |
|
$ |
70,000,000 |
|
Morgan Stanley & Co.
Incorporated
|
|
$ |
45,000,000 |
|
$ |
95,000,000 |
|
$ |
70,000,000 |
|
Barclays Capital Inc.
|
|
$ |
36,000,000 |
|
$ |
76,000,000 |
|
$ |
56,000,000 |
|
HSBC Securities (USA) Inc.
|
|
$ |
36,000,000 |
|
$ |
76,000,000 |
|
$ |
56,000,000 |
|
UBS Securities LLC
|
|
$ |
27,000,000 |
|
$ |
57,000,000 |
|
$ |
42,000,000 |
|
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
|
|
$ |
138,300,000 |
|
$ |
0 |
|
$ |
0 |
|
Total
|
|
$ |
450,000,000 |
|
$ |
950,000,000 |
|
$ |
700,000,000 |
|
|
|
|
|
|
|
|
|
|
SCHEDULE I-A
Representatives
Citigroup Global Markets
Inc.
Lehman Brothers
Inc.
J.P. Morgan Securities
Inc.
SCHEDULE II
|
|
|
|
Indenture:
|
|
|
|
|
First
Amended and Restated Indenture, dated as of March 1, 1988, between
Kimberly-Clark Corporation (the “Company”) and The Bank
of New York Trust Company, N.A., as successor Trustee (the
“Trustee”), as supplemented and amended |
|
| Trustee: |
|
|
|
|
The Bank of
New York Trust Company, N.A., as successor Trustee |
|
| Titles of Designated Securities: |
|
|
|
|
2010 Floating Rate Notes: Floating Rate
Notes due July 30, 2010
2017 Notes: 6.125% Notes due August 1,
2017
2037 Notes: 6.625% Notes due August 1,
2037
|
|
| Aggregate Principal Amount: |
|
|
|
|
2010 Floating Rate Notes:
$450,000,000
2017 Notes: $950,000,000
2037 Notes: $700,000,000
|
|
| Initial Offering Price to Public: |
|
|
|
|
2010 Floating Rate Notes: 100% of the
principal amount of the 2010 Floating Rate Notes, plus accrued
interest, if any, from July 30, 2007
2017 Notes: 99.697% of the principal
amount of the 2017 Notes, plus accrued interest, if any, from
July 30, 2007
2037 Notes: 98.946% of the principal
amount of the 2037 Notes, plus accrued interest, if any, from
July 30, 2007
|
|
| Purchase Price to Underwriters: |
|
|
|
|
2010 Floating Rate Notes: 99.750% of the
principal amount of the 2010 Floating Rate Notes, plus accrued
interest, if any, from July 30, 2007
2017 Notes: 99.247% of the principal
amount of the 2017 Notes, plus accrued interest, if any, from
July 30, 2007
2037 Notes: 98.071% of the principal
amount of the 2037 Notes, plus accrued interest, if any, from
July 30, 2007
|
|
|
|
| Preliminary Prospectus Supplement: |
|
|
|
|
Preliminary
Prospectus Supplement dated July 25, 2007 |
|
| Maturity: |
|
|
|
|
2010 Floating Rate Notes: July 30,
2010
2017 Notes: August 1, 2017
2034 Notes: August 1, 2037
|
|
| Interest Rate: |
|
|
|
|
2010 Floating Rate Notes: 3-month LIBOR
plus 0.10%
2017 Notes: 6.125% per annum
2037 Notes: 6.625% per annum
|
|
| Redemption Provisions: |
|
|
|
|
As set forth
in the Preliminary Prospectus Supplement dated July 25,
2007 |
|
| Interest Payment Dates: |
|
|
|
|
2010 Floating Rate Notes:
January 31, April 30, July 31 and October 31, commencing
October 31, 2007
2017 Notes: February 1 and August 1,
commencing February 1, 2008
2037 Notes: February 1 and August 1,
commencing February 1, 2008
|
|
| Record Dates: |
|
|
|
|
2010 Floating Rate Notes:
January 15, April 15, July 15 and October 15
2017 Notes: January 15 and July
15
2037 Notes: January 15 and July
15
|
|
| Sinking Fund Provisions: |
|
|
|
|
The
Designated Securities shall not be entitled to any sinking
fund |
|
| Date and Time of Delivery: |
|
|
|
|
July 30,
2007; 9:00 a.m., New York time |
|
|
|
| Closing Location: |
|
|
|
|
Simpson Thacher & Bartlett
LLP
425 Lexington Avenue
New York, New York
|
|
| Funds for Payment of Purchase Price: |
|
|
|
|
Immediately
Available Funds by Wire Transfer |
|
| Delayed Delivery: |
|
|
|
|
None |
|
| Name and Address for Purposes of Section 13: |
|
|
|
|
c/o Citigroup Global Markets
Inc.
388 Greenwich St.
New York, NY 10013
|
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| Other Terms: |
|
|
|
|
The
provisions of Section 402 and Section 1006 of the Indenture,
relating to defeasance and covenant defeasance, respectively, shall
apply to the Designated Securities. |
SCHEDULE III
“ Free Writing
Prospectuses ”
| |
• |
|
Pricing term
sheet, dated July 25, 2007, relating to the Designated
Securities, as filed pursuant to Rule 433 under the Securities
Act.
|
SCHEDULE IV
Kimberly-Clark
Corporation
$450,000,000 Floating Rate
Notes due July 30, 2010
$950,000,000 6.125% Notes
due August 1, 2017
$700,000,000 6.625% Notes
due August 1, 2037
PRICING TERM
SHEET
Dated July 25,
2007
Floating Rate Notes due
July 30, 2010
|
|
|
| Issuer: |
|
Kimberly-Clark Corporation |
|
|
| Security
Type: |
|
Senior
Notes |
|
|
| Offering Format: |
|
SEC
Registered |
|
|
| Principal Amount: |
|
$450,000,000 |
|
|
| Maturity
Date: |
|
July 30,
2010 |
|
|
| Reference Benchmark: |
|
3-month
LIBOR (Reuters LIBOR01) |
|
|
| Spread to
Reference Benchmark: |
|
10
bps |
|
|
| Interest
Payment Dates: |
|
Quarterly on
the last day of January, April, July and October, commencing
October 31, 2007 |
|
|
| Price to
Public: |
|
100% of the
principal amount |
|
|
| Redemption: |
|
The notes
will not be redeemable prior to maturity. |
|
|
| Change of
Control: |
|
Kimberly-Clark Corporation will be required to make an offer to
repurchase the notes at a price of 101% of the principal amount
plus accrued and unpaid interest upon a Change of Control
Repurchase Event. |
|
|
| Expected Settlement Date: |
|
July 30,
2007 |
|
|
| CUSIP: |
|
494368
BA0 |
|
|
| Anticipated Ratings: |
|
A2 (Stable) by Moody’s Investors
Service, Inc.
A+ (Negative Outlook) by Standard &
Poor’s Ratings Services
A (Stable) by Fitch Ratings
Ltd.
|
|
|
| Joint Book-Running Managers: |
|
Citigroup Global Markets Inc.
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
|
|
|
| Co-Managers: |
|
Goldman, Sachs & Co.
Morgan Stanley & Co.
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
UBS Securities LLC
|
6.125% Notes due
August 1, 2017
|
|
|
|
Issuer:
|
|
Kimberly-Clark Corporation |
|
|
| Security Type: |
|
Senior
Notes |
|
|
| Offering Format: |
|
SEC
Registered |
|
|
| Principal Amount: |
|
$950,000,000 |
|
|
| Maturity
Date: |
|
August 1,
2017 |
|
|
| Coupon: |
|
6.125% |
|
|
| Interest Payment Dates: |
|
Semi-annually on the first day of February and August,
commencing February 1, 2008 |
|
|
| Price to
Public: |
|
99.697% of
the principal amount |
|
|
| Benchmark Treasury: |
|
4.500% due
May 15, 2017 |
|
|
| Benchmark Treasury Yield: |
|
4.896% |
|
|
| Spread to
Benchmark Treasury: |
|
127
bps |
|
|
| Yield to
Maturity: |
|
6.166% |
|
|
| Optional
Redemption: |
|
The notes
will be redeemable, at the option of Kimberly-Clark Corporation, at
any time, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount of the notes to be
redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted, on
a semi-annual basis, at the applicable treasury rate plus 25 basis
points, plus, in each case, accrued interest to the date of
redemption. |
|
|
| Change of
Control: |
|
Kimberly-Clark Corporation will be required to make an offer to
repurchase the notes at a price of 101% of the principal amount
plus accrued and unpaid interest upon a Change of Control
Repurchase Event. |
|
|
| Expected
Settlement Date: |
|
July 30,
2007 |
|
|
| CUSIP: |
|
494368
BB8 |
|
|
| Anticipated Ratings: |
|
A2 (Stable) by Moody’s Investors
Service, Inc.
A+ (Negative Outlook) by Standard &
Poor’s Ratings Services
A (Stable) by Fitch Ratings
Ltd.
|
|
|
| Joint
Book-Running Managers: |
|
Citigroup Global Markets Inc.
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
|
|
|
| Co-Managers: |
|
Goldman, Sachs & Co.
Morgan Stanley & Co.
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
UBS Securities LLC
|
6.625% Notes due
August 1, 2037
|
|
|
| Issuer: |
|
Kimberly-Clark Corporation |
|
|
| Security Type: |
|
Senior
Notes |
|
|
| Offering Format: |
|
SEC
Registered |
|
|
| Principal Amount: |
|
$700,000,000 |
|
|
| Maturity
Date: |
|
August 1,
2037 |
|
|
| Coupon: |
|
6.625% |
|
|
| Interest Payment Dates: |
|
Semi-annually on the first day of February and August,
commencing February 1, 2008 |
|
|
| Price to
Public: |
|
98.946% of
the principal amount |
|
|
| Benchmark
Treasury: |
|
4.500% due
February 15, 2036 |
|
|
| Benchmark Treasury Yield: |
|
5.037% |
|
|
| Spread to
Benchmark Treasury: |
|
167
bps |
|
|
| Yield to
Maturity: |
|
6.707% |
|
|
| Optional
Redemption: |
|
The notes
will be redeemable, at the option of Kimberly-Clark Corporation, at
any time, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount of the notes to be
redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted, on
a semi-annual basis, at the applicable treasury rate plus 30 basis
points, plus, in each case, accrued interest to the date of
redemption. |
|
|
| Change of
Control: |
|
Kimberly-Clark Corporation will be required to make an offer to
repurchase the notes at a price of 101% of the principal amount
plus accrued and unpaid interest upon a Change of Control
Repurchase Event. |
|
|
| Expected
Settlement Date: |
|
July 30,
2007 |
|
|
| CUSIP: |
|
494368
BC6 |
|
|
| Anticipated Ratings: |
|
A2 (Stable) by Moody’s Investors
Service, Inc.
A+ (Negative Outlook) by Standard &
Poor’s Ratings Services
A (Stable) by Fitch Ratings
Ltd.
|
|
|
| Joint
Book-Running Managers: |
|
Citigroup Global Markets Inc.
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
|
|
|
| Co-Managers: |
|
Goldman, Sachs & Co.
Morgan Stanley & Co.
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
UBS Securities LLC
|
Note: A securities rating is not a
recommendation to buy, sell or hold securities and may be subject
to revision or withdrawal at any time.
The issuer has filed a registration
statement (No. 333-144828) (including a prospectus and a
preliminary prospectus supplement) with the U.S. Securities and
Exchange Commission (the “SEC”) for the offering to
which this communication relates. Before you invest, you should
read each of these documents and other documents the issuer has
filed with the SEC for more complete information about the issuer
and this offering.
You may get these documents for free
by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling Citigroup Global Markets
Inc. toll free at 1-877-858-5407, Lehman Brothers Inc. toll-free at
1-888-603-5847 or J.P. Morgan Securities Inc. collect at
1-212-834-4533.
SCHEDULE V
Forms of Comfort
Letters
Kimberly-Clark
Corporation
Debt
Securities
Underwriting Agreement
General Terms and Conditions
Dated July 25,
2007
Kimberly-Clark Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell from time to time certain of its debt securities (the
“Securities”) registered under the Securities Act of
1933, as amended (the “Act”), as set forth in
Section 2. The Securities are to be issued in one or more
series under one or more indentures between the Company and such
banking institutions, as trustees, as, in the case of any such
indenture or any such trustee, is designated in Schedule II to the
Underwriting Agreement (as defined below) relating to any such
series (each indenture and trustee so designated with respect to
any such series being hereinafter referred to as the
“Indenture” and the “Trustee”,
respectively).
From time to time, the
Company may enter into one or more underwriting agreements that
provide for the sale of the Securities specified in Schedule II to
such underwriting agreement to the underwriter or several
underwriters named to Schedule I to such underwriting agreement
(the “Underwriters”). The general terms and conditions
set forth herein may be incorporated by reference in any such
underwriting agreement (an “Underwriting Agreement”).
The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this
Agreement.
1. The Company proposes to
issue and sell the Securities in one or more series, which series
may vary as to their terms (including, but not limited to, interest
rate, maturity, any redemption provisions and any sinking fund
requirements), all of such terms for any particular series being
determined at the time of sale. All or a portion of particular
series of the Securities will be purchased by the Underwriters for
resale upon terms of offering determined at the time of sale. The
Securities so to be purchased in any such offering are hereinafter
referred to as the “Designated Securities”, and any
firm or firms named in Schedule I-A to the Underwriting Agreement
as acting as representatives of such Underwriters are hereinafter
referred to as the “Representatives”. If the firm or
firms named in Schedule I-A to the Underwriting Agreement include
only the firm or firms named in Schedule I to the Underwriting
Agreement, the terms “Underwriters” and
“Representatives” shall each be deemed to refer to such
firm or firms. The term “Underwriters’
Securities” means Designated Securities other than Contract
Securities. The term “Contract Securities” means
Designated Securities, if any, to be purchased pursuant to Delayed
Contracts (as defined in Section 3 hereof) below.
The obligations of the
Underwriters under this Agreement are several and not
joint.
2. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement
in respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”) and has become
effective under the Act, in the form heretofore delivered or
hereafter to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all
documents incorporated by reference therein on or prior to the date
of this Agreement, to the Representatives for each of the other
Underwriters; such registration statement, including all exhibits
thereto but excluding Form T-1, and the prospectus included in such
registration statement, each as amended at the date of this
Agreement, being hereinafter called the “Registration
Statement” and the “Basic Prospectus”,
respectively. As used in this Agreement, “Preliminary
Prospectus”, if any, means the Basic Prospectus together with
the Preliminary Prospectus Supplement, if any, referred to in
Schedule II to the Underwriting Agreement. As used in this
Agreement, “Prospectus” means the Basic Prospectus
together with the final prospectus supplement specifically relating
to the Designated Securities in the definitive form filed pursuant
to Rule 424 under the Act after the date and time this Agreement is
executed and delivered by the parties hereto. Any reference herein
to the Basic Prospectus, and Preliminary Prospectus, if any, or the
Prospectus shall be deemed to refer to and include the documents or
portions thereof incorporated by reference therein pursuant to the
applicable form under the Act; and any reference to any amendment
or supplement to the Basic Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents or portions thereof filed after the date of this
Agreement under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and so incorporated by
reference.
(b) At or prior to the time
when sales of the Designated Securities were first made (the
“Time of Sale”), the Company had prepared the following
information (collectively, the “Time of Sale
Information”): the Preliminary Prospectus and each
“free writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Schedule III to the
Underwriting Agreement.
(c) The Registration
Statement and the Prospectus conform, and any further amendments or
supplements thereto, when they become effective or are filed with
the Commission, will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939 (the
“Trust Indenture Act”) and the rules and regulations
adopted by the Commission; the Registration Statement and the Basic
Prospectus, on each effective date of the Registration
Statement (and any amendment
thereto) did not contain and will not contain, and on the date of
execution of this Agreement did not 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 therein not
misleading; and the Prospectus does not, and any amendments or
supplements thereto, when they become effective or are filed with
the Commission, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; the Time of Sale Information,
at the Time of Sale did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the representations and warranties contained in this paragraph
(c) shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through the
Representatives expressly for use therein.
(d) The Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not made an offer to sell or
solicitation of an offer to buy the Designated Securities pursuant
to a “written communication” (as defined in Rule 405
under the Act) (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clauses (i) (ii) and (iii) below) an
“Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the Act,
(ii) the Preliminary Prospectus, if any, (iii) the
Prospectus, (iv) the documents listed on Schedule III to the
Underwriting Agreement and (v) any electronic road show or
other written communications, in each case approved in advance by
the Representatives. Each such Issuer Free Writing Prospectus
complied in all material respects with the Act, has been or will be
(within the time period specified in Rule 433) filed in accordance
with the Act (to the extent required thereby) and, when taken
together with any Preliminary Prospectus accompanying, or delivered
prior to delivery of, such Issuer Free Writing Prospectus, did not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus does not include
any information that conflicts with the information contained in
the Registration Statement, including any document incorporated by
reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified.
(e) The Company is a
corporation validly existing and in good standing under the laws of
the jurisdiction of its incorporation, with corporate power to own
its properties and conduct its business as described in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(f) Deloitte &
Touche LLP, who have audited certain financial statements of the
Company and its subsidiaries, are independent public accountants
with respect to the Company and its subsidiaries as required by the
Act.
(g) The financial statements
of the Company and its consolidated subsidiaries, together with
related schedules and notes filed as a part of or incorporated by
reference in the Registration Statement, Time of Sale Information
or the Prospectus comply in all material respects with the
applicable requirements of the Act and the Exchange Act, as
applicable, and fairly present the financial position of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and changes in financial
position for the periods specified, and have been prepared in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved, except as disclosed in such financial
statements.
(h) The Company has designed
and maintains internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act,
“Reporting Controls”); and the Reporting Controls are
(i) designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP and
include, without limitation, those processes specifically referred
to in Rule 13a-15(f) and (ii) effective to perform the
functions for which they are maintained.
(i) The Company maintains
systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (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 the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(j) The Company and its
directors or officers, in their capacities as such, have complied
in all material respects with the provisions of the Sarbanes Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections
302 and 906 related to certifications.
(k) The Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Act, in each case at the times specified in
the Act in connection with the offering of the Designated
Securities.
(i) The Company will not
take, 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 Designated
Securities.
3. Upon authorization by the
Representatives of the release of the Underwriters’
Securities, the several Underwriters propose to offer the
Underwriters’ Securities for sale upon the terms and
condition
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