Exhibit 1.1
$300,000,000
COOPER
US, INC.
5.450% Senior Notes due April 1, 2015
guaranteed by
COOPER
INDUSTRIES, LTD.
(and specified subsidiaries)
Underwriting Agreemen t
March 24, 2008
Deutsche
Bank Securities Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC
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As Representatives of the several
Underwriters |
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c/o
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J.P. Morgan Securities Inc. |
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270 Park Avenue |
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New York, New York 10017 |
Ladies
and Gentlemen:
Introductory. Cooper US, Inc.
a Delaware corporation (the “Company”), proposes to
issue and sell to the several underwriters named in Schedule A
(the “Underwriters”), acting severally and not jointly,
the respective amounts set forth in such Schedule A of
$300,000,000 aggregate principal amount of the Company’s
5.450% Senior Notes due 2015 (the “Notes”). Deutsche
Bank Securities Inc., J.P. Morgan Securities Inc. and UBS
Securities LLC have agreed to act as representatives of the several
Underwriters (in such capacity, the “Representatives”)
in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to
an indenture, dated as of June 18, 2007, between the Company,
Cooper Industries, Ltd., a company existing under the laws of
Bermuda (“Parent”), Cooper B-Line, Inc., Cooper
Bussmann, LLC (formerly Cooper Bussmann, Inc.), Cooper
Crouse-Hinds, LLC, Cooper Lighting, LLC (formerly Cooper
Lighting, Inc.), Cooper Power Systems, LLC (formerly Cooper Power
Systems, Inc.)and Cooper Wiring Devices, Inc. (each a
“Subsidiary Guarantor,” collectively the
“Subsidiary Guarantors” and, together with Parent, the
“Guarantors”) and Deutsche Bank Trust Company Americas,
as trustee (the “Trustee”), as supplemented by the
First Supplemental Indenture, dated as of June 18, 2007 and as
supplemented by the Second Supplemental Indenture to be dated as of
the Closing Date (as defined below) (as so supplemented, the
“Indenture”). The Notes will be guaranteed (the
“Guarantees”) on an unsecured senior basis by the
Guarantors. The Notes, as guaranteed by the Guarantors pursuant to
the Guarantees, are referred to as the
“Securities.”
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The Notes will be issued in
book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company (the “Depositary”), pursuant
to a Letter of Representations, to be dated on or before the
Closing Date (as defined in Section 2 below) (the “DTC
Agreement”), between the Company and the Depositary.
The Company and the Guarantors have
prepared and filed with the Securities and Exchange Commission (the
“Commission”) an “automatic shelf”
registration statement (as defined in Rule 405 under the
Securities Act of 1933, as amended (collectively, with the rules
and regulations promulgated thereunder, the “Securities
Act”) on Form S-3 (File No. 333-143688), which contains
a base prospectus (the “Base Prospectus”), to be used
in connection with the public offering and sale of debt securities,
including the Securities, under the Securities Act, and the
offering thereof from time to time in accordance with Rule 415
under the Securities Act. Such registration statement, including
the financial statements, exhibits and schedules thereto, in the
form in which it became effective under the Securities Act,
including any required information deemed to be a part thereof at
the time of effectiveness pursuant to Rule 430B under the
Securities Act, is called the “Registration Statement.”
The term “Prospectus” shall mean the final prospectus
supplement relating to the Securities, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) after
the date and time that this Agreement is executed (the
“Execution Time”) by the parties hereto. The term
“Preliminary Prospectus” shall mean any preliminary
prospectus supplement relating to the Securities, together with the
Base Prospectus, that is first filed with the Commission pursuant
to Rule 424(b). Any reference herein to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents that are or are deemed
to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act prior to 5:45 p.m. Eastern
Time on March 24, 2008 (the “Initial Sale Time”).
All references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System
(“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary
Prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Preliminary Prospectus, as the
case may be, prior to the Initial Sale Time; and all references in
this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or the Preliminary Prospectus shall be
deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange
Act”), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, after the Initial Sale Time.
The Company hereby confirms its
agreements with the Underwriters as follows:
Section 1. Representations
and Warranties of the Company and the Guarantors .
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The Company and the Guarantors,
jointly and severally, hereby represent, warrant and covenant to
each Underwriter as of the date hereof, as of the Initial Sale Time
and as of the Closing Date (in each case, a “Representation
Date”), as follows:
(a) Compliance with
Registration Requirements . Each of the Company, Parent and the
Subsidiary Guarantors meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement
has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of Parent
or the Company, are contemplated or threatened by the Commission,
and any request on the part of the Commission for additional
information has been complied with. In addition, the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Trust Indenture Act”).
At the respective times the
Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration
Statement and any post-effective amendments thereto
(i) complied and will comply in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act, and (ii) did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus
and at the Closing Date, neither the Prospectus nor any amendments
or supplements thereto included or will include an untrue statement
of a material fact or omitted or will 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.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (i) that part of the
Registration Statement that constitutes the Statement of
Eligibility on Form T-1 of the Trustee under the Trust Indenture
Act and (ii)statements in or omissions from the Registration
Statement or any post-effective amendment or the Prospectus or any
amendments or supplements thereto made in reliance upon and in
conformity with information furnished to Parent or the Company in
writing by any of the Underwriters through the Representatives
expressly for use therein, it being understood and agreed that the
only such information furnished by any Underwriter through the
Representatives consists of the information described as such in
Section 8 hereof.
Each Preliminary Prospectus and the
Prospectus, at the time each was filed with the Commission,
complied in all material respects with the Securities Act, and the
Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the
Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(b) Disclosure Package .
The term “Disclosure Package” shall mean (i) the
Preliminary Prospectus dated March 24, 2008 and (ii) the
issuer free writing prospectuses as defined in Rule 433 of the
Securities Act (each, an “Issuer Free Writing
Prospectus”), if any, identified in Annex I hereto. As of the
Initial Sale Time, the Disclosure Package did not 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 sentence does not apply to statements in
or omissions from the
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Disclosure Package based upon and in conformity with information
furnished to Parent or the Company in writing by any Underwriter
through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by
any Underwriter through the Representatives consists of the
information described as such in Section 8 hereof.
(c) Incorporated
Documents . The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus (i) at the time they
were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the
Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time,
and when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date,
did not or will 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.
(d) Parent is a Well-Known
Seasoned Issuer . (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 Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or the Guarantors
or any person acting on their behalf (within the meaning, for this
clause only, of Rule 163(c) of the Securities Act) made
any offer relating to the Securities in reliance on the exemption
of Rule 163 of the Securities Act, and (iv) as of the
Execution Time, Parent was and is a “well known seasoned
issuer” as defined in Rule 405 of the Securities Act.
The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 of the
Securities Act, that automatically became effective not more than
three years prior to the Execution Time; neither the Company nor
any of the Guarantors has received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to
use of the automatic shelf registration statement form and the
Company and the Guarantors have not otherwise ceased to be eligible
to use the automatic shelf registration form.
(e) Parent is not an
Ineligible Issuer . (i) At the time of filing the
Registration Statement and (ii) as of the Execution Time (with
such date being used as the determination date for purposes of this
clause (ii)), Parent was not and is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act), without taking
account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that
Parent be considered an Ineligible Issuer.
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the offering of the Securities under this Agreement or until any
earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement, the Disclosure Package or the Prospectus. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, the
Disclosure Package or the Prospectus
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the
Company and the Guarantors have promptly notified or will promptly
notify the Representatives and have promptly amended or
supplemented or will promptly amend or supplement, at their own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
Parent or the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
(g) Distribution of Offering
Material By the Company . The Company and the Guarantors have
not distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters’
distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than the
Preliminary Prospectus, the Prospectus and any Issuer Free Writing
Prospectus reviewed and consented to by the Representatives and
included in Annex I hereto or the Registration Statement.
(h) Authorization of
Underwriting Agreement . This Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors.
(i) Authorization of the
Indenture . The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and each of the Guarantors and constitutes
a 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, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles and an implied covenant of good faith and fair
dealing.
(j) Authorization of the
Notes. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been
duly authorized for issuance and sale pursuant to this Agreement
and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles
and an implied covenant of good faith and fair dealing, and will be
entitled to the benefits of the Indenture.
(k) Authorization of the
Guarantees . The Guarantees have been duly authorized by each
of the Guarantors and, when the Notes have been duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, the Guarantees will be valid and
legally binding obligation of each of the Guarantors, enforceable
against each of the Guarantors in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws
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relating
to or affecting the rights and remedies of creditors or by general
equitable principles and an implied covenant of good faith and fair
dealing.
(l) Description of the
Notes, the Guarantees and the Indenture . The Notes, the
Guarantees and the Indenture conform in all material respects to
the descriptions thereof contained in the Disclosure Package and
the Prospectus.
(m) Accuracy of Statements
in Prospectus . The statements in each of the Disclosure
Package and the Prospectus under the captions “Description of
Notes and Guarantees,” “Description of Debt Securities
and Guarantees” and “Material U.S. Federal Income Tax
Considerations” in each case insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material
respects, the matters referred to therein.
(n) No Material Adverse
Change . Except as otherwise disclosed in the Disclosure
Package and the Prospectus, subsequent to the respective dates as
of which information is given in the Disclosure Package,
(i) there has not been any material change in the capital
stock or long-term debt of the Company, Parent or any of
Parent’s subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position
or results of operations of Parent and its subsidiaries taken as a
whole (a “Material Adverse Change”); (ii) none of
the Company, Parent or any of Parent’s subsidiaries has
entered into any transaction or agreement that is material to
Parent and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
Parent and its subsidiaries taken as a whole; and (iii) none
of the Company, Parent or any of Parent’s subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority that is material to Parent and its
subsidiaries taken as a whole.
(o) Independent
Accountants . Ernst & Young LLP, who have expressed their
opinion with respect to Parent’s audited financial statements
for the fiscal years ended December 31, 2007, 2006 and 2005
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, are independent public
accountants with respect to Parent as required by the Securities
Act and the Exchange Act and are a registered public accounting
firm with the Public Company Accounting Oversight Board.
(p) Preparation of the
Financial Statements . The financial statements together with
the related notes thereto incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus
present fairly in all material respects the consolidated financial
position of Parent and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for
the periods specified. Such financial statements comply as to form
with the applicable accounting requirements of the Securities Act
and have been prepared in conformity with generally accepted
accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related
notes thereto. No other financial statements are required to be
included in the Registration Statement. The summary financial
information included in the Disclosure Package and the Prospectus
present fairly in all material respects the information
6
shown
therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement, the Disclosure Package and the Prospectus.
(q) Incorporation and Good
Standing of the Company and its Subsidiaries . The Company, the
Guarantors and each of their respective subsidiaries have been duly
incorporated and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on
the business, properties, management, financial position or results
of operations of Parent and its subsidiaries taken as a whole or on
the performance by the Company and the Guarantors of their
obligations under the Notes and the Guarantees (a “Material
Adverse Effect”). All of the issued and outstanding shares of
capital stock or membership interests of each subsidiary have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned by Parent, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
(r) Capitalization and Other
Capital Stock Matters . The authorized, issued and outstanding
capital stock of Parent is as set forth in the Disclosure Package
and the Prospectus under the caption “Capitalization”
(other than for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans and Parent’s
stock repurchase program referred to in the Disclosure Package and
the Prospectus or upon exercise of outstanding options referred to
in the Disclosure Package and the Prospectus, as the case may
be).
(s) No Violation or
Default . None of the Company, Parent or any of Parent’s
subsidiaries is (i) in violation of its charter, by-laws or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, Parent or any of
Parent’s subsidiaries is a party or by which the Company,
Parent or any of Parent’s subsidiaries is bound or to which
any of the property or assets of the Company, Parent or any of
Parent’s subsidiaries is subject; or (iii) in violation
of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for
any such default or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(t) No Conflicts. The
execution, delivery and performance by the Company and the
Guarantors of this Agreement and the Indenture, the issuance and
sale of the Securities (including the Guarantees) and compliance by
the Company and the Guarantors with the terms thereof and the
consummation of the transactions contemplated thereby will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, Parent or
any of Parent’s subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the
7
Company,
Parent or any of Parent’s subsidiaries is a party or by which
the Company, Parent or any of Parent’s subsidiaries is bound
or to which any of the property or assets of the Company, Parent or
any of Parent’s subsidiaries is subject, (ii) result in
any violation of the provisions of the charter, by-laws or similar
organizational documents of the Company, Parent or any of
Parent’s subsidiaries or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clause (i) above, for any such
conflict, breach or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(u) No Consents Required
. No consent, approval, authorization, filing, order, registration
or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and
performance by the Company and the Guarantors of this Agreement,
the issuance and sale of the Securities (including the Guarantees)
and compliance by the Company and the Guarantors with the terms
thereof and the consummation of the transactions contemplated by
this Agreement, except for such consents, approvals,
authorizations, filings, orders and registrations or qualifications
as may be required under applicable state securities laws.
(v) Legal Proceedings.
Except as described in the Prospectus and the Disclosure Package,
there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company, Parent
or any of Parent’s subsidiaries is or may be a party or to
which any property of the Company, Parent or any of Parent’s
subsidiaries is or may be the subject that, individually or in the
aggregate, if determined adversely to the Company, Parent or any of
Parent’s subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and to the best knowledge of the Company
and the Guarantors, no such investigations, actions, suits or
proceedings are threatened or, to the best knowledge of the Company
and the Guarantors, contemplated by any governmental or regulatory
authority or threatened by others.
(w) No Labor Disputes.
No labor disturbance by or dispute with employees of the Company,
Parent or any of Parent’s subsidiaries exists or, to the best
knowledge of the Company and the Guarantors, is contemplated or
threatened, that would have a Material Adverse Effect.
(x) Title to Intellectual
Property. Except as would not, individually or in the
aggregate, have a Material Adverse Effect, the Company, Parent and
Parent’s subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their respective businesses as now operated by them; and
neither the Company, Parent nor Parent’s subsidiaries has
received any notice of any claim of infringement of or conflict
with any such rights of others that if determined adversely to the
Company, Parent or Parent’s subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
(y) Compliance With
Environmental Laws. Except as described in the Prospectus and
the Disclosure Package, the Company, Parent and Parent’s
subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules and regulations,
decisions and orders relating to the protection of human health and
safety, the environment or hazardous or
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toxic
substances or wastes, pollutants or contaminants (collectively,
“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 for the investigation
or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except in any
such case for any such failure to comply with, or failure to
receive required permits, licenses or approvals or liability, as
would not, individually or in the aggregate, have a Material
Adverse Effect.
(z) Investment Company
Act. Neither the Company nor any of the Guarantors is, and
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
Prospectus and the Disclosure Package none of them will be, an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”).
(aa) No Price Stabilization
or Manipulation . None of the Company, Parent or any of
Parent’s subsidiaries has not taken and will not take,
directly or indirectly, any action designed to or that would be
reasonably expected to cause or result in stabilization or
manipulation of the price of any security of the Company or Parent
to facilitate the sale or resale of the Securities.
(bb) Stock Options .
With respect to the stock options (the “Stock Options”)
granted pursuant to the stock-based compensation plans of Parent
and its subsidiaries (the “Parent Stock Plans”),
(i) each such grant was made in all material respects in
accordance with the terms of the Parent Stock Plans, the Exchange
Act and all other applicable laws and regulatory rules or
requirements, including the rules of the New York Stock Exchange
and any other exchange on which Parent securities are traded,
(ii) the per share exercise price of each Stock Option was
equal to the fair market value of a share of common stock on the
applicable Grant Date and (iii) each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of Parent and disclosed in
Parent’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws.
(cc) Sarbanes-Oxley
Compliance . There is and has been no failure on the part of
Parent or any of Parent’s directors or officers, in their
capacities as such, to comply in all material respects with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(dd) Internal Control over
Financial Reporting . Parent maintains a system of internal
control over financial reporting (as such term is defined in
Rule 13a-15(f) under the Exchange Act) designed by, or under
the supervision of, Parent’s principal executive officer and
principal financial officer to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles.
Management of Parent most recently assessed the effectiveness of
Parent’s internal control over financial reporting as of
December 31, 2007, using the criteria set forth by the
Committee of Sponsoring Organizations of the Treadway Commission in
Internal Control-Integrated Framework . Based upon that
assessment, management of Parent
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believed
that, as of December 31, 2007, Parent’s internal control
over financial reporting was effective based upon those criteria.
Management of Parent is not aware of any reason why Parent’s
internal control over financial reporting is not effective as of
the date hereof, and management of Parent is not aware as of the
date hereof of any material weakness in its internal control over
financial reporting.
(ee) Disclosure Controls and
Procedures. Parent maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange
Act) that have been designed to ensure that material information
relating to Parent and its consolidated subsidiaries is made known
to Parent’s principal executive officer and principal
financial officer by others within those entities. Management of
Parent most recently performed an evaluation of the effectiveness
of the design and operation of Parent’s disclosure controls
and procedures as of the end of the year ended December 31,
2007. Based upon that evaluation, management of Parent concluded
that Parent’s disclosure controls and procedures were
effective as of such date. Management of Parent is not aware of any
reason why Parent’s disclosure controls and procedures are
not effective as of the date hereof.
Any certificate signed by an officer
of the Company, Parent or any subsidiary of Parent and delivered to
the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company, Parent
or any such subsidiary, as the case may be, to each Underwriter as
to the matters set forth therein.
Section 2. Purchase, Sale and
Delivery of the Notes .
(a) The Notes . The
Company agrees to issue and sell to the several Underwriters,
severally and not jointly, all of the Notes upon the terms herein
set forth. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and
not jointly, to purchase from the Company the aggregate principal
amount of Notes set forth opposite their respective names on
Schedule A at a purchase price of 99.196% of the principal
amount of the Notes, payable on the Closing Date.
(b) The Closing Date .
Delivery of certificates for the Notes in global form to be
purchased by the Underwriters and payment therefor shall be made at
the offices of Mayer Brown LLP, 71 South Wacker Drive, Chicago,
Illinois 60606 (or such other place as may be agreed to by the
Company and the Representatives) at 9:00 a.m., New York City time,
on March 27, 2008, or such other time and date as the
Underwriters and the Company shall mutually agree (the time and
date of such closing are called the “Closing
Date”).
(c) Public Offering of the
Notes . The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described
in the Disclosure Package and the Prospectus, their respective
portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is
advisable and practicable.
(d) Payment for the
Notes . Payment for the Notes shall be made at the Closing Date
by wire transfer of immediately available funds to the order of the
Company.
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(e) It is understood that the
Representatives have been authorized, for their own accounts and
for the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the
Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment
for any Notes to be purchased by any Underwriter whose funds shall
not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this
Agreement.
(f) Delivery of the
Notes . The Company shall deliver, or cause to be delivered, to
the Representatives for the accounts of the several Underwriters
global certificates representing the Notes at the Closing Date,
against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The
certificates for the Notes shall be in such denominations and
registered in such names and denominations as the Representatives
shall have requested at least one full business day prior to the
Closing Date and shall be made available for inspection on the
business day preceding the Closing Date at a location in New York
City, as the Representatives may designate. Time shall be of the
essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the
Underwriters.
Section 3. Covenants of the
Company and the Guarantors .
The Company and the Guarantors,
jointly and severally, covenant and agree with each Underwriter as
follows:
(a) Compliance with
Securities Regulations and Commission Requests . The Company
and the Guarantors, subject to Section 3(b), will comply with
the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in
writing, of (i) the effectiveness during the Prospectus
Delivery Period (as defined below) of any post-effective amendment
to the Registration Statement or the filing of any supplement or
amendment to the Preliminary Prospectus or the Prospectus,
(ii) the receipt of any comments from the Commission during
the Prospectus Delivery Period, (iii) any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Preliminary Prospectus or the
Prospectus or, on or before the later of the Closing Date or such
date as, in the opinion of counsel for the Company, the Prospectus
is no longer required by law to be delivered in connection with
sales of the Securities by an Underwriter or dealer, for additional
information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company and the
Guarantors will promptly effect the filings necessary pursuant to
Rule 424 and will take such steps as they deem necessary to
ascertain promptly whether the Preliminary Prospectus and the
Prospectus transmitted for filing under Rule 424 was received
for filing by the Commission and, in the event that it was not,
they will promptly file such document. The Company and the
Guarantors will use their respective
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reasonable best efforts to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Filing of Amendments
. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the
opinion of counsel for the Underwriters, the Prospectus is no
longer required by law to be delivered in connection with sales of
the Securities by an Underwriter or dealer, including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 of the Securities Act (the “Prospectus Delivery
Period”), the Company and the Guarantors will give the
Representatives notice of their intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b) of the Securities Act), or any amendment,
supplement or revision to the Disclosure Package or the Prospectus,
whether pursuant to the Securities Act, the Exchange Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration
Statements . The Company and the Guarantors have furnished or
will deliver to the Representatives and counsel for the
Underwriters, without charge, as the Representatives may reasonably
request, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed
copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of
Prospectuses . The Company and the Guarantors will deliver to
each Underwriter, without charge, as many copies of the Preliminary
Prospectus as such Underwriter may reasonably request, and the
Company and the Guarantors hereby consent to the use of such copies
for purposes permitted by the Securities Act. The Company and the
Guarantors will furnish to each Underwriter, without charge, during
the Prospectus Delivery Period, such number of copies of the
Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance
with Securities Laws . The Company and the Guarantors will
comply with the Securities Act and the Exchange Act so as to permit
the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement,
the Disclosure Package and the Prospectus. If at any time during
the Prospectus Delivery Period, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company and the Guarantors,
to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein
or
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necessary to make the statements therein not misleading or to amend
or supplement the Disclosure Package or the Prospectus in order
that the Disclosure Package or the Prospectus, as the case may be,
will 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 existing at the Initial
Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the
Registration Statement or amend or supplement the Disclosure
Package or the Prospectus in order to comply with the requirements
of any law, the Company and the Guarantors will (1) notify the
Representatives of any such event or condition and
(2) promptly prepare and file with the Commission, subject to
Section 3(b) hereof, such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement, the Disclosure Package or the Prospectus
comply with such law, and the Company and the Guarantors will
furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Compliance
. The Company and the Guarantors shall cooperate with the
Representatives and counsel for the Underwriters to qualify or
register the Securities for sale under (or obtain exemptions from
the application of) the applicable state securities or blue sky
laws of those jurisdictions designated by the Representatives,
shall comply with such laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the
distribution of the Securities. The Company and the Guarantors
shall not be required to qualify to transact business or to take
any action that would subject it to general service of process in
any such jurisdiction where it is not presently qualified or where
it would be subject to taxation as a foreign business. The Company
and the Guarantors will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such
exemption relating to) the Securities for offering, sale or trading
in any jurisdiction or any initiation or threat of any proceeding
for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the
Company and the Guarantors shall use their respective reasonable
best efforts to obtain the withdrawal thereof at the earliest
possible moment.
(g) Use of Proceeds .
The Company shall apply the net proceeds from the sale of the Notes
sold by it in the manner described under the caption “Use of
Proceeds” in the Disclosure Package and the Prospectus.
(h) Depositary . The
Company and the Guarantors will cooperate with the Underwriters and
use their respective commercially reasonable efforts to permit the
Notes to be eligible for clearance and settlement through the
facilities of the Depositary.
(i) Periodic Reporting
Obligations . During the Prospectus Delivery Period, Parent
shall file, on a timely basis, with the Commission and the New York
Stock Exchange all reports and documents required to be filed under
the Exchange Act.
(j) Agreement Not to Offer
or Sell Additional Securities . During the period commencing on
the date hereof and ending on the Closing Date, the Company and the
Guarantors will not, without the prior written consent of the
Representatives (which consent shall not be unreasonably withheld),
directly or indirectly, sell, offer, contract or grant any option
to
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sell,
pledge, transfer or establish an open “put equivalent
position” within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the
Securities Act in respect of, any debt securities of the Company or
the Guarantors similar to the Notes or Guarantees or securities
exchangeable for or convertible into debt securities similar to the
Notes or Guarantees (other than as contemplated by this Agreement
with respect to the Notes).
(k) Final Term Sheet .
The Company and the Guarantors will prepare a final term sheet
containing only a description of the Securities, and will file such
term sheet pursuant to Rule 433(d) under the Securities Act
within the time required by such rule (such term sheet, the
“Final Term Sheet”). Any such Final Term Sheet is an
Issuer Free Writing Prospectus for purposes of this Agreement. A
form of the Final Term Sheet for the Securities is attached hereto
as Exhibit B.
(l) Permitted Free Writing
Prospectuses . The Company and the Guarantors represent that
they have not made, and agree that, unless they obtain the prior
written consent of the Representatives, they will not make, any
offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405
of the Securities Act) required to be filed by the Company or the
Guarantors with the Commission or retained by the Company or the
Guarantors under Rule 433 of the Securities Act; provided that
the prior written consent of the Representatives shall be deemed to
have been given in respect of any Issuer Free Writing Prospectuses
included in Annex I to this Agreement. Any such free writing
prospectus consented to or deemed to be consented to by the
Representatives is hereinafter referred to as a
“Permitted
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