Exhibit 1.1
EXECUTION VERSION
JARDEN CORPORATION
$300,000,000
8% Senior Notes due 2016
Underwriting Agreement
April 27, 2009
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
J.P. Morgan Securities
Inc.
277 Park Avenue
New York, New York 10172
and
Barclays Capital Inc.
745 Seventh Avenue
New York, NY 10019
Ladies and Gentlemen:
Jarden Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom the addressees listed above
(the “Representatives”) are acting as representatives,
$300,000,000 aggregate principal amount of its 8% Senior Notes due
2016 (the “Notes”). The Notes will be unconditionally
guaranteed (the “Guarantees” and, together with the
Notes, the “Securities”) on a joint and several basis
by certain of the subsidiaries of the Company listed on Schedule 3
hereto (the “Guarantors”). The Securities will be
issued pursuant to an Indenture to be dated as of April 30,
2009 (the “Base Indenture”) between the Company, the
Guarantors and The Bank of New York Mellon, as trustee (the
“Trustee”) as supplemented by a Supplemental Indenture
thereto, to be dated as of the Closing Date (as defined herein)
(the “Supplemental Indenture” and, together with the
Base Indenture, the “Indenture”), between the Company,
the Guarantors and the Trustee.
The Company and the Guarantors
hereby confirm their agreement with the several Underwriters
concerning the purchase and sale of the Notes and issuance of the
Guarantees, as follows:
1. Registration Statement .
The Company and the Guarantors have prepared and filed with the
Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement (File
No. 333-158801), including a prospectus (the “Base
Prospectus”) relating to securities to be issued from time to
time by the Company, including the Notes, and the guarantees of
debt securities to be issued from time to time by the Guarantors,
including the Guarantees. Such registration statement, as amended
at the time it became effective, including the information, if any,
deemed pursuant to Rule 430A, 430B or 430C under the Securities Act
to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to
herein as the “Registration Statement”; and as used
herein, the term “Preliminary Prospectus” means the
Base Prospectus included in the Registration Statement at the time
of its effectiveness, together with the preliminary prospectus
supplement dated April 27, 2009 filed with the Commission that
omits Rule 430 Information, and the term “Prospectus”
means the Base Prospectus together with the final prospectus
supplement in accordance with Rules 415 and 424(b) in the form
first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Securities. If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, 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 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the Applicable Time
(as defined below), the Company had prepared the following
information (collectively, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated April 27, 2009
and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex B
hereto.
“Applicable Time” means
7:00 A.M., New York City time, on April 28, 2009.
2. Purchase of the Securities by
the Underwriters .
(a) The Company agrees to issue and
sell the Notes and the Guarantors agree to issue the Guarantees to
the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Company the principal amount of the Notes set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to
95.151% of the principal amount thereof plus accrued interest, if
any, from April 30, 2009 to the Closing Date (as defined
below). The Company will not be obligated to deliver any of the
Notes except upon payment for all the Notes to be purchased as
provided herein.
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(b) The Company and the Guarantors
understand that the Underwriters intend to make a public offering
of the Securities as soon after the effectiveness of this Agreement
as in the judgment of the Representatives is advisable, and
initially to offer the Securities on the terms set forth in the
Prospectus. The Company and the Guarantors acknowledge and agree
that the Underwriters may offer and sell Securities to or through
any affiliate of an Underwriter and that any such affiliate may
offer and sell Securities purchased by it to or through any
Underwriter.
(c) Payment for and delivery of the
Securities will be made at the offices of Cahill Gordon &
Reindel LLP
at 10:00 A.M., New York City time,
on April 30, 2009, or at such other time or place on the same
or such other date, not later than the fifth business day
thereafter, as the Representatives and the Company may agree upon
in writing. The time and date of such payment and delivery is
referred to herein as the “Closing Date.”
Payment for the Securities shall be
made by wire transfer by the Underwriters in immediately available
funds to the account(s) specified by the Company to the
Representatives against delivery by the Company to the nominee of
The Depository Trust Company (“DTC”), for the account
of the Underwriters, of one or more global notes representing the
Securities (collectively, the “Global Note”), with any
transfer taxes payable in connection with the sale of the
Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date.
(d) The Company and the Guarantors
acknowledge and agree that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company and the Guarantors with respect to the offering of
Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company, the
Guarantors or any other person. Additionally, neither the
Representatives nor any other Underwriter is advising the Company,
the Guarantors or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company and the Guarantors shall consult with their own
advisors concerning such matters and shall be responsible for
making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have
no responsibility or liability to the Company or the Guarantors
with respect thereto. Any review by the Underwriters of the
Company, the Guarantors, the transactions contemplated hereby or
other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company or the Guarantors.
3. Representations and Warranties
of the Company and the Guarantors . The Company and the
Guarantors, jointly and severally, represent and warrant to each
Underwriter that:
(a) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the Preliminary
Prospectus included in the Pricing Disclosure Package, at the time
of filing thereof, complied
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in all material respects with the
applicable requirements of the Securities Act, and the Preliminary
Prospectus does not, at the time of filing thereof, contain any
untrue statement of a material fact or omitted 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 neither the Company nor the
Guarantors makes any representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through the
Representatives expressly for use in the Preliminary Prospectus, it
being understood and agreed that the only such information
furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(b) Pricing Disclosure
Package . The Pricing Disclosure Package as of the Applicable
Time did not, and as of 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 therein, in the
light of the circumstances under which they were made, not
misleading; provided that neither the Company nor the
Guarantors makes any representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through the
Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, neither the Company nor
the Guarantors (including their agents and representatives, other
than the Underwriters in their capacity as such) have prepared,
used, authorized, approved or referred to and will not prepare,
use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer
to buy the Securities (each such communication by the Company, the
Guarantors or their agents and representatives (other than a
communication referred to in clause (i) below) an
“Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rules 134 and 168
under the Securities Act or (ii) the documents listed on Annex
B hereto, each electronic road show and any other written
communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus, did not,
and as of 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 therein, in the light of the
circumstances under which they were made, not misleading;
provided that neither the Company nor the Guarantors makes
any representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus,
Preliminary Prospectus or Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by or on behalf of such Underwriter
through the Representatives
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expressly for use in such Issuer
Free Writing Prospectus, Preliminary Prospectus or Prospectus, it
being understood and agreed that the only such information
furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of
the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering of the Securities
has been initiated or, to the knowledge of the Company, threatened
by the Commission; as of the applicable effective date of the
Registration Statement and any post-effective amendment thereto,
the Registration Statement and any such post-effective amendment
complied and will comply in all material respects with the
applicable requirements of the Securities Act, the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Trust Indenture
Act”), and 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 in order to make the statements therein
not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date the
Prospectus 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 the light of the circumstances under which
they were made, not misleading; provided that neither the
Company nor the Guarantors makes any representation and warranty
with respect to (i) that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act or
(ii) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by or on behalf of such Underwriter
through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement
thereto, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(e) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package, when
they were filed with the Commission conformed in all material
respects to the applicable requirements of the Exchange Act, and
none of such documents contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the
Prospectus or the Pricing Disclosure Package, when such documents
are filed with the Commission, will conform in all material
respects to the applicable requirements of the Exchange Act and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
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(f) Financial Statements. The
financial statements (including the related notes thereto) of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the
periods covered thereby, and any supporting schedules included or
incorporated by reference in the Registration Statement present
fairly in all material respects the information required to be
stated therein; and the other financial information included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus has been derived from
the accounting records of the Company and its consolidated
subsidiaries and presents fairly in all material respects the
information shown thereby.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any (A) material
change in the capital stock (other than the issuance of shares of
common stock upon exercise of stock options and warrants described
as outstanding in, and the grant of options and awards under
existing equity incentive plans described in, the Registration
Statement, the Pricing Disclosure Package and the Prospectus),
(B) material change in short-term debt or (C) long-term
debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material
adverse change in or affecting the business, properties, executive
officers of the Company, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the
ordinary course of business) that is material to the Company and
its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any loss or
interference with its business that is material to the Company and
its subsidiaries taken as a whole and that is either 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, except in each case as otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(h) Organization and Good
Standing. The Company and each of its Significant Subsidiaries
(as defined below) have been duly organized 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 (corporate or otherwise) necessary
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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 in good standing or
have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business,
properties, executive officers of the Company, financial condition,
results of operations or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company
and the Guarantors of their obligations under this Agreement, the
Indenture, the Notes and the Guarantees, as applicable (a
“Material Adverse Effect”). Other than the subsidiaries
listed on Schedule 2 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.
(i) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Capitalization”; all the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the
Pricing Disclosure Package and the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each Significant Subsidiary owned, directly or indirectly, by the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable (except, in the case of any foreign
subsidiary, for directors’ nominal or qualifying shares) and
are owned directly or indirectly by the Company, free and clear of
any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party, except
for such security interest or other lien, charge or voting/transfer
restrictions that would not individually or in the aggregate
reasonably be expected to have a Material Adverse
Effect.
(j) [ Reserved .]
(k) Due Authorization. Each
of the Company and the Guarantors has full right, power and
authority to execute and deliver this Agreement, the Notes or the
Guarantees, as applicable, and the Indenture and to perform its
obligations hereunder and thereunder; and all action required to be
taken for the due and proper authorization, execution and delivery
by it of this Agreement, the Indenture, the Notes or the
Guarantees, as applicable, and the consummation by it of the
transactions contemplated hereby has been duly and validly
taken.
(l) The Indenture . Each of
the Base Indenture and the Supplemental Indenture has been duly
authorized by the Company and, or as applicable, each Guarantor
and
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upon effectiveness of the
Registration Statement was or will have been duly qualified under
the Trust Indenture Act and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company
and, or as applicable, the Guarantors enforceable against the
Company and, or as applicable, the Guarantors in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles
relating to enforceability (collectively, the “Enforceability
Exceptions”).
(m) The Notes . The Notes
have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(n) The Guarantees . The
Guarantees have been duly authorized by each Guarantor and, when
duly executed, issued and delivered as provided in the Indenture
and when the Notes have been paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid
and legally binding obligations of each Guarantor enforceable
against each such Guarantor in accordance with their terms, subject
to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(o) Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors.
(p) No Violation or Default.
Neither the Company nor any of its Significant Subsidiaries is
(i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and, to the
knowledge of the Company, 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 or any of its
Significant Subsidiaries is a party, subject to the effectiveness
of Amendment No. 11 to the Company’s Credit Agreement
dated January 24, 2005, as amended, or by which the Company or
any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
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.
(q) No Conflicts. The
execution, delivery and performance by the Company and the
Guarantors of this Agreement, the Base Indenture and the
Supplemental Indenture, the issuance and sale of the Securities and
compliance by the Company and the Guarantors with the terms thereof
and the consummation of the transactions contemplated by this
Agreement 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
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or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party, subject to the effectiveness
of Amendment No. 11 to the Company’s Credit Agreement
dated January 24, 2005, as amended, or by which the Company or
any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational
documents of the Company or any of its Significant 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
clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(r) No Consents Required. No
material consent, approval, authorization, order, license,
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 Base Indenture and the Supplemental Indenture, the
issuance and sale of the Securities and compliance by the Company
and the Guarantors with the terms thereof and the consummation of
the transactions contemplated by this Agreement, except for the
registration of the Securities under the Securities Act, the
qualification of the Indenture and the Trust Indenture Act and such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities
laws in connection with the purchase and distribution of the
Securities by the Underwriters and except as may be required by
applicable state gaming laws with respect to holders of the
Securities.
(s) Legal Proceedings. Except
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its Significant Subsidiaries is or may
be a party or to which any property of the Company or any of its
Significant Subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; to the knowledge of the Company, no
such investigations, actions, suits or proceedings are threatened
or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and
(ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
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(t) Independent Accountants .
PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries and Ernst &
Young LLP, who have certified certain financial statements of the
Company and its subsidiaries, is each an independent registered
public accounting firm with respect to the Company and its
subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(u) Title to Real and Personal
Property . The Company and its Significant Subsidiaries have
good and marketable title in fee simple (in the case of real
property) to, or have valid and marketable rights to lease or
otherwise use, all items of real and personal property and assets
that are material to the respective businesses of the Company and
its subsidiaries, in each case free and clear of all liens,
encumbrances, and defects except those that (i) do not
materially interfere with the use made and proposed to be made of
such property by the Company and its Significant Subsidiaries or
(ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(v) Title to Intellectual
Property . The Company and its Significant Subsidiaries own,
possess valid license(s), or have other 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 currently conducted, except where
the failure to own or possess such rights could not reasonably be
expected, individually or in the aggregate, to result in a Material
Adverse Effect. The Company and its Significant Subsidiaries have
not received any written notice of any claim of infringement,
misappropriation or conflict with any such rights of others in
connection with its patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how,
which could reasonably be expected to result in a Material Adverse
Effect.
(w) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure
Package.
(x) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, will not be required to register as 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, the “Investment Company
Act”).
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(y) Taxes. The Company and
each of its subsidiaries have filed all federal, state, local and
foreign returns which have been required to be filed (taking into
account valid extensions) and have paid all taxes due and payable
(whether or not shown on such tax returns) and all assessments
received by any of them, except where they are contesting the
validity of any such tax in good faith and adequate provision (in
accordance with GAAP) has been made therefor in the financial
statements of the Company and its subsidiaries except where failure
to file such returns or pay such taxes or such assessments could
not reasonably be expected to result in a Material Adverse Effect;
and except as otherwise disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, there is no tax
deficiency that has been asserted against the Company or any of its
subsidiaries or any of their respective properties or assets,
except in any case in which such tax deficiency would not have a
Material Adverse Effect.
(z) Licenses and Permits. The
Company and its Significant Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a
Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its Significant
Subsidiaries has received notice of any revocation or modification
of any such license, certificate, permit or authorization except
where such revocation or modification would not, individually or in
the aggregate, have a Material Adverse Effect.
(aa) No Labor Disputes. No
labor disturbance by or dispute with employees of the Company or
any of its Significant Subsidiaries exists or, to the knowledge of
the Company, is contemplated or threatened, and the Company is not
aware of any existing or imminent labor disturbance by, or dispute
with, the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, except as would not
have a Material Adverse Effect.
(bb) Compliance with and
Liability under Environmental Laws. Except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) the Company and its Significant
Subsidiaries(a) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations,
requirements, decisions, judgments, decrees orders and the common
law relating to pollution or the protection of the environment,
natural resources or human health or safety, including those
relating to the generation, storage, treatment, use, handling,
transportation, Release or threat of Release of Hazardous Materials
(collectively, “Environmental Laws”), (b) have
received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them
under applicable Environmental Laws to conduct their respective
businesses, (c) have not received written notice of any actual
or potential liability under or relating to, or actual or potential
violation of, any Environmental Laws, including for the
investigation or remediation of any Release or threat of Release of
Hazardous Materials, and have no knowledge of any event or
condition that would reasonably
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be expected to result in any such
notice, (d) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action
pursuant to any Environmental Law at any location, and (e) are
not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law,
(ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its
subsidiaries, (iii) there are no proceedings that are pending,
or that are known to be contemplated, against the Company or any of
its Significant Subsidiaries under any Environmental Laws in which
a governmental entity is also a party and (iv) the Company and
its Significant Subsidiaries are not aware of any facts or issues
regarding compliance with Environmental Laws, or liabilities or
other obligations under Environmental Laws, including the Release
or threat of Release of Hazardous Materials, except in the case of
each of (i), (ii), (iii) and (iv) above, for any such
matter, as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(cc) Hazardous Materials .
There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous
Materials by, relating to or caused by the Company or any of its
Significant Subsidiaries (or, to the knowledge of the Company and
its subsidiaries, any other entity (including any predecessor) for
whose acts or omissions the Company or any of its subsidiaries is
or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or
leased by the Company or any of its Significant Subsidiaries, or
at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under
any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring
radioactive materials, brine, and drilling mud, regulated or which
can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or
migrating in, into or through the environment, or in, into from or
through any building or structure.
(dd) Compliance with ERISA.
Except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (i) each
employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), for which the Company or any member of its
“Controlled Group” (defined as any organization which
is a member of a controlled group of corporations within the
meaning of Section 414 of the Code) would have any liability
(each, a “Plan”) has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Code; (ii)
