J.P. MORGAN SECURITIES
INC.
9,500,000 Shares of Common
Stock
J.P. Morgan
Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
383 Madison Ave.
New York, New York 10179
Energizer
Holdings, Inc., a Missouri corporation (the “ Company
”), proposes to issue and sell to the several Underwriters
listed in Schedule 1 hereto (the “ Underwriters
”), for whom you are acting as representatives (the “
Representatives ”), an aggregate of 9,500,000 shares
of common stock, par value $.01 per share, of the Company (the
“ Underwritten Shares ”) and, at the option of
the Underwriters, up to an additional 1,425,000 shares of common
stock, par value $.01 per share, of the Company (the “
Option Shares ”). The Underwritten Shares and the
Option Shares are herein referred to as the “ Shares
”. The shares of common stock of the Company to be
outstanding after giving effect to the sale of the Shares are
referred to herein as the “ Stock ”. The Stock,
including the Shares, will have attached thereto Rights (the
“ Rights ”) to purchase Common Shares (as
defined in the Rights Agreement). The Rights are to be issued
pursuant to a Rights Agreement (the “ Rights Agreement
”) dated as of March 16, 2000 between the Company and
Continental Stock Transfer & Trust Company.
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1.
Registration Statement . The Company has 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. 333-159110), including a
prospectus (the “ Base Prospectus ”) relating to
the Shares and Rights. The Company has also filed, or proposes to
file, with the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the
Shares and Rights (the “ Prospectus Supplement
”). 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 “ Prospectus
” means the Base Prospectus included in the Registration
Statement (and any amendments thereto) as supplemented
by the
prospectus supplement specifically relating to the Shares and
Rights 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 Shares, and the term
“ Preliminary Prospectus ” means the preliminary
prospectus supplement specifically relating to the Shares and
Rights together with the Base Prospectus. 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 with the pricing information
set forth on Annex B, the “ Pricing Disclosure Package
”): a Preliminary Prospectus dated May 11, 2009 and each
“ free-writing prospectus ” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex B
hereto.
“
Applicable Time ” means 5:30 P.M., New York City time,
on May 14, 2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Shares 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 respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at
a price per share (the " Purchase Price ”) of
$46.9175. The Company will not be obligated to deliver any of the
Underwritten Shares except upon payment for all of the Underwritten
Shares to be purchased as provided herein.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the
Company the Option Shares at the Purchase Price less an amount per
share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on
the Option Shares.
If any Option
Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Underwritten Shares set forth
opposite the name of such Underwriter in Schedule 1 hereto (or
such number increased as set forth in Section 10 hereof) bears
to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
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The Underwriters
may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day
following the date of the Prospectus, by written notice from the
Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date or later than the tenth full business day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof). Any such notice shall be given at least
three business days prior to the date and time of delivery
specified therein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Shares as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter (a “ Participating Affiliate
”).
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares, at the
offices of Davis Polk & Wardwell at 10:00 A.M., New York
City time, on May 20, 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 or, in the case of the Option Shares, on the date and at
the time and place specified by the Representatives in the written
notice of the Underwriters’ election to purchase such Option
Shares. The time and date of such payment for the Underwritten
Shares is referred to herein as the “ Closing Date
”, and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as
the “ Additional Closing Date ”.
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several
Underwriters of the Shares to be purchased on such date, with any
transfer taxes payable in connection with the sale of such Shares
duly paid by the Company. Delivery of the Shares shall be made
through the facilities of The Depository Trust Company (“
DTC ”) unless the Representatives shall otherwise
instruct. The certificates for the Shares will be made available
for inspection and packaging by the Representatives at the office
of DTC or its designated custodian not later than 1:00 P.M., New
York City time, on the business day prior to the Closing Date or
the Additional Closing Date, as the case may be.
(d) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Shares
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 or any other person.
Additionally, neither any Representative nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, 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. This Section 2(d) shall not apply to Moelis
& Company, which has served as a financial advisor to the
Company.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter that:
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(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus included in the Pricing Disclosure Package,
at the time of filing thereof, complied in all material respects
with the Securities Act, and no Preliminary Prospectus, at the time
of filing thereof, contained 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 the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with the Underwriter Information as defined 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 and as of the
Additional Closing Date, as the case may be, 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 the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the
Underwriter Information as defined in Section 7(b)
hereof.
(c) Issuer Free
Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not 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
Shares (each such communication by the Company or its 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 Rule 134 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
filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, 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 the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with the
Underwriter Information as defined 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 Shares 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
4
respects with
the Securities 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 and as of the Additional Closing Date, as the case may
be, 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
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with the Underwriter Information as defined 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 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 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.
(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 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 change in the capital
stock (other than the issuance of shares of common stock upon
exercise of stock options and warrants or vesting of awards
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), any material change in the short-term debt of the
Company or any of its subsidiaries or any material change in the
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, or development involving a
prospective change that has had, or would reasonably be expected to
have, a material adverse effect on the business, properties,
management, financial position, shareholders’ equity, results
of operations or prospects of the Company and its
5
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 the
case of each of clause (i), (ii) and (iii) above, 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 set forth in Schedule 2
hereto, the “ Significant Subsidiaries ”) 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 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 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, management, financial
position, shareholders’ equity or results of operations or
prospects of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under this
Agreement (a “ Material Adverse Effect ”). The
subsidiaries listed in Schedule 2 to this Agreement are, as of
March 31, 2009, the only significant subsidiaries of the
Company within the meaning of Rule 1-02(w) of
Regulation S-X.
(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, or for any shares or awards issued
pursuant to any stock plan of the Company disclosed in 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 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’ 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 those that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(j) Stock
Options. With respect to the stock options (the “
Stock Options ”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “
Company Stock Plans ”), (i) each Stock Option
intended to qualify as an “ incentive stock
6
option ” under Section 422 of the Code so
qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective by all necessary corporate
action, including, as applicable, approval by the board of
directors of the Company (or a duly constituted and authorized
committee thereof) and any required shareholder approval by the
necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was, in
material respects, made in accordance with the terms of the Company
Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the New York Stock
Exchange (the “ Exchange ”) and any other
exchange on which Company securities are traded, and (iv) each
such grant was, in all material respects, properly accounted for in
accordance with GAAP in the financial statements (including the
related notes) of the Company and disclosed in the Company’s
filings with the Commission in accordance with the Exchange Act and
all other applicable laws. The Company has not knowingly granted,
and there is no and has been no policy or practice of the Company
of granting, Stock Options prior to, or otherwise coordinating the
grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its
subsidiaries or their results of operations or
prospects.
(k) Due
Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and all action required to be
taken for the due and proper authorization, execution and delivery
by it of this Agreement and the consummation by it of the
transactions contemplated hereby has been duly and validly
taken.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(m) The
Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform in all
material respects, to the descriptions thereof in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; and
the issuance of the Shares is not subject to any preemptive or
similar rights; the Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally or by equitable or
fiduciary principles relating to enforceability; and the Rights
have been duly authorized by the Company and, when issued upon
issuance of the Shares, will be validly issued, and the Common
Shares have been duly authorized by the Company and validly
reserved for issuance upon the exercise in accordance with the
terms of the Rights Agreement and will be validly issued, fully
paid and non-assessable.
(n) 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 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 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) except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, 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,
7
in the case of
clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(o) No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares 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
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
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 by
the Company or any of its Significant Subsidiaries of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except,
(x) 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, reasonably be expected to have a
Material Adverse Effect and (y) in the case of clause
(iii) above, for any such violation that may arise under
applicable state securities laws or rules or statutes in connection
with the purchase and distribution of the Shares by the
Underwriters.
(p) No Consents
Required. No consent, approval, authorization, order, license,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required of the Company for
the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated by this Agreement, except
(i) such as have been obtained or made, (ii) for the
registration of the Shares under the Securities Act and
(iii) such consents, approvals, authorizations, orders and
registrations or qualifications (A) as may be required by the
Financial Industry Regulatory Authority, Inc. (“ FINRA
”) and under applicable state securities laws or rules and
regulations of FINRA or any foreign laws or statutes in connection
with the purchase and distribution of the Shares by the
Underwriters or (B) as described in the Pricing Disclosure
Package and the Prospectus or (C) as a result of the legal or
regulatory status of any person (other than the Company or its
subsidiaries) because of any other facts specifically pertaining to
such person.
(q) Legal
Proceedings. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus: there are no
legal, governmental or regulatory, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened, to which
the Company or any of its subsidiaries is a party or, in the case
of investigations, to the knowledge of the Company, may reasonably
be expected to be a party or to which any property of the Company
or any of its subsidiaries is the subject or, in the case of
investigations, to the knowledge of the Company, may reasonably be
expected to 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; no
such investigations, actions, suits or proceedings are, to the
knowledge of the Company, 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
8
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.
(r) Independent
Accountants . PriceWaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its subsidiaries is
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.
(s) Title to
Real and Personal Property . Except as would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect, the Company and its subsidiaries have good title in
fee simple (in the case of owned real property) to, or have valid
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, to the knowledge
of the Company, free and clear of all liens, encumbrances, claims
and defects and imperfections of title except those that
(i) are shown on the financial statements (including the
related notes thereto) of the Company and its consolidated
subsidiaries included or incorporated by reference, or otherwise
described or disclosed, in the Registration Statement, the Pricing
Disclosure Package and the Prospectus or (ii) do not
materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries.
(t)
Intellectual Property . The Company and/or its 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 currently conducted and as proposed to be conducted,
except as would not reasonably be expected to result in a Material
Adverse Effect and, to the Company’s knowledge, the conduct
of their respective businesses will not conflict in any material
respect with any such rights of others. The Company and its
subsidiaries have not received any notice of any claim of
infringement, misappropriation or conflict with any such
intellectual property rights of others that could reasonably be
expected to result in a Material Adverse Effect.
(u) 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,
shareholders, 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.
(v) Investment
Company Act . The Company is not and, after giving effect to
the offering and sale of the Shares 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
”).
(w) Taxes.
Each of the Company and its subsidiaries has filed all federal,
state, local and foreign tax returns required to be filed by it
through the date hereof and paid all taxes as shown thereon and all
assessments received by it to the extent required to be paid and
not being
9
contested in
good faith, except where the failure to do so would not reasonably
be expected to have a Material Adverse Effect; and to the
Company’s knowledge, except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus, there is no tax deficiency that has been, or would
reasonably be expected to be, asserted in writing against the
Company or any of its subsidiaries or any of their respective
properties or assets that would reasonably be expected to have a
Material Adverse Effect.
(x) Licenses
and Permits. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Company and
its 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, reasonably be expected to 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 subsidiaries has
received notice of any revocation or modification of any such
license, certificate, permit or authorization that would not
reasonably be expected to have a Material Adverse Effect or has any
reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary course that would
reasonably be expected to have a Material Adverse
Effect.
(y) No Labor
Disputes. (i) No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to
the knowledge of the Company, is contemplated or threatened, and
(ii) 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 with respect to clauses (i) and (ii) above
as would not reasonably be expected to have a Material Adverse
Effect.
(z) 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
subsidiaries (a) are, and, to the knowledge of the Company, at
all prior times were, 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 (as defined below) or threat of Release of
Hazardous Materials (as defined below) (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 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, other than with respect to such notices as have been
resolved and for which no costs, obligations or damages remain, and
have no knowledge of any event or condition that would reasonably
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, and (ii) there are no
costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries, except in the case of
each of (i) and (ii) above, for any such matter, as would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and
10
(iii) except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (a) there are no proceedings that are pending, or
that are known by the Company to be contemplated against the
Company or any of its subsidiaries under any Environmental Laws in
which a governmental entity is also a party, other than such
proceedings regarding which the Company reasonably believes will
not result in monetary sanctions (exclusive of any interest or
costs) of $100,000 or more, (b) the Company and its
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, that would reasonably be
expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company and its
subsidiaries, and (c) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any
Environmental Laws.
(aa) Hazardous
Materials . Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, 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 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
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 and naturally occurring radioactive materials,
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.
(bb) Compliance
with ERISA. Except as would not reasonably be expected to have
a Material Adverse Effect or as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
(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
Internal Revenue Code of 1986, as amended (the “ Code
&rd
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