WYNDHAM WORLDWIDE CORPORATION
$200,000,000
3.50% Convertible Notes due 2012
Underwriting Agreement
Credit Suisse
Securities (USA) LLC
J.P. Morgan Securities Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed in
Schedule II hereto
c/o Credit Suisse Securities
(USA) LLC
Eleven Madison Avenue
New York, New York
10010-3629
Wyndham
Worldwide Corporation, a corporation organized under the laws of
Delaware (the “Company”), proposes to issue and sell to
the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its 3.50% Convertible Notes due 2012 identified
in Schedule I hereto (the “Underwritten
Securities”). The Company also proposes to grant to the
Underwriters an option purchase up to an additional principal
amount of securities set forth in Schedule I hereto to cover
over-allotments (the “Option Securities”; the Option
Securities, together with the Underwritten Securities, hereinafter
called the “Securities”). The Securities are not
convertible into shares of Common Stock, par value $0.01 per share
(the “Common Stock”), of the Company or any other
securities of the Company under any circumstances. Upon conversion,
in lieu of receiving shares of Common Stock, a holder of the
Securities will receive an amount in cash equal to the settlement
amount, determined in the manner set forth in the Final Prospectus.
The Securities are to be issued under an indenture (the “Base
Indenture”) dated as of November 20, 2008, between the
Company and U.S. Bank National Association, as trustee (the
“Trustee”) and a first supplemental indenture between
the Company and the Trustee to be dated the Closing Date (together
with the Base Indenture, the “Indenture”). To the
extent there are no additional Underwriters listed on
Schedule II other than you, the term Representatives as used
herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or
plural as the context requires. The use of neuter in this Agreement
shall include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 20
hereof.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company
meets the requirements for use of Form S-3 under the Act and
has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (the file
number of which is set forth in Schedule I hereto) on
Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, became effective upon
filing. The Company may have filed with the Commission, as part of
an amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectus supplements relating to
the Securities, each of which has previously been furnished to you.
The Company will file with the Commission a final prospectus
supplement relating to the Securities in accordance with
Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and the rules
thereunder, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Registration Statement,
at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x). The initial Effective Date of the
Registration Statement was not earlier than the date three years
before the Execution Time.
(b) On each
Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing
Date (a “settlement date”), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on each Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date,
the Final Prospectus (together with any supplement thereto) will
not include 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
2
circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8(b)
hereof.
(c) As of the
Execution Time, (i) the Disclosure Package and (ii) each
electronic road show related to the Securities (with the exception
of the financial and operating projections on page 29 of the
electronic road related to the Securities), when taken together as
a whole with the Disclosure Package, does 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 Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8(b) hereof.
(d) (i) At
the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Sections 13 or 15(d) of the Exchange Act or
form of prospectus), and (iii) at the Execution Time (with
such date being used as the determination date for purposes of this
clause (iii)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in
Rule 405. The Company agrees to pay the fees required by the
Commission relating to the Securities within the time required by
Rule 456(b)(1)(i) without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an Ineligible
Issuer.
(f) Each Issuer
Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information
that conflicts with the information contained in the Registration
Statement, including any document
3
incorporated
therein by reference and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8(b)
hereof.
(g) 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 Disclosure Package and the Final Prospectus, will not be an
“investment company” as defined in the Investment
Company Act.
(h) The Company
has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company
(except as contemplated in this Agreement and the Underwriting
Agreement among the Company and the underwriters with respect to
the notes of the Company due 2014, dated the date
hereof).
(i) The statements
in the Disclosure Package and the Final Prospectus under the
captions “Description of Notes,” “Description of
Cash Convertible Note Hedge and Warrant Transactions” and
“Description of Debt Securities,” insofar as such
statements purport to summarize certain provisions of the Indenture
and the Securities, fairly summarize such provisions in all
material respects.
(j) The financial
and operating projections on page 29 of the electronic road show
related to the Securities have a reasonable basis and are made
without actual knowledge by the Company that the projections are
false or misleading.
(k) No holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
(l) The Company
has not taken, directly or indirectly, any action designed to or
that has constituted or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(m) Each of the
Company and its Significant Subsidiaries has been duly incorporated
or formed and is validly existing in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Disclosure Package and the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction that requires such
qualification, except to the extent that the failure to so qualify
or be in good standing, individually or in the aggregate, would not
have a material adverse effect, or would not constitute a
development involving a prospective change which would have a
material adverse effect, on the condition (financial or
otherwise),
4
earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business (a “Material Adverse
Effect”).
(n) All the
outstanding shares of capital stock of the Company and each
Significant Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable. Except as otherwise set forth
in the Disclosure Package and the Final Prospectus, all outstanding
shares of capital stock of the subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free
and clear of any security interest, claim, lien or encumbrance,
except as would not have a Material Adverse Effect.
(o) The
Company’s authorized equity capitalization is as set forth in
the Disclosure Package and the Final Prospectus; the capital stock
of the Company conforms in all material respects to the description
thereof contained in the Disclosure Package and the Final
Prospectus; the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable;
the holders of outstanding shares of capital stock of the Company
are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Disclosure Package and
the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding.
(p) This Agreement
has been duly authorized, executed and delivered by the Company;
the Indenture has been duly authorized by the Company and, assuming
due authorization, execution and delivery thereof by the Trustee,
when executed and delivered by the Company, will constitute a valid
and legally binding instrument enforceable against the Company in
accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of
equity); and the Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters, will
have been duly executed and delivered by the Company, will be fully
paid and nonassessable, and will constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors’ rights generally from time to
time in effect and to general principles of equity).
(q) No consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein or in the Indenture, except such
as may be required under the blue sky laws of any jurisdiction in
which the Securities are offered and sold or for any filings made
by the Company under the Exchange Act and the Trust Indenture
Act.
(r) None of the
execution and delivery of this Agreement or the Indenture, the
issuance and sale of the Securities, or the consummation of any
other of the transactions
5
herein or
therein contemplated, or the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries
pursuant to (i) the charter or bylaws or comparable
constituting documents of the Company or any of its Significant
Subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other similar agreement, obligation or instrument to which the
Company or any of its subsidiaries is a party or bound or to which
its or their property is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties,
except in the case of clauses (ii) and (iii) above, for
any such conflicts, breaches, violations, liens, charges or
encumbrances as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
performance by the Company of this Agreement or the Indenture, the
issuance and sale of the Securities or the consummation of any of
the transactions contemplated herein or therein.
(s) The
consolidated and combined historical financial statements and
schedules of the Company and its consolidated subsidiaries
incorporated by reference in the Disclosure Package and the Final
Prospectus present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of Regulation S-X,
except as otherwise stated therein, and have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
involved (except as otherwise noted therein).
(t) No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries or its or their property is pending or, to the
knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance by
the Company of this Agreement or the Indenture, or the consummation
of any of the transactions contemplated hereby or thereby, or
(ii) could reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto made after the date hereof).
(u) Each of the
Company and its subsidiaries owns or leases all such tangible
properties as are necessary to the conduct of its operations as
presently conducted, except as would not have a Material Adverse
Effect.
(v) Neither the
Company nor any of its subsidiaries is in violation or default of
(i) any provision of its charter or bylaws or comparable
constituting documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other similar agreement, obligation or instrument to
which it is a party or bound or to which its property is subject;
or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its subsidiaries of
any
6
court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, except
in the case of clauses (ii) and (iii) above for any such
violation or default that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(w) Deloitte &
Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated and combined
historical financial statements and schedules incorporated by
reference in the Disclosure Package and the Final Prospectus, are
an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and
regulations of the Public Company Accounting Oversight Board
(United States) and as required by the Act.
(x) The Company
and its subsidiaries have filed all applicable tax returns that are
required to be filed or have requested extensions thereof (except
in any case in which the failure so to file would not have a
Material Adverse Effect and except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto made after the date hereof))
and have paid all taxes required to be paid by them and any other
tax assessment, fine or penalty levied against them, to the extent
that any of the foregoing is due and payable, except for any such
tax assessment, fine or penalty that is currently being contested
in good faith or as would not have individually or in the aggregate
a Material Adverse Effect and except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto made after the
date hereof).
(y) No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or to the knowledge of the Company is
threatened or imminent, except as would not have a Material Adverse
Effect and except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto made after the date hereof).
(z) To the
Company’s best knowledge, except as disclosed in the
Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto made after the date hereof), no
disputes exist or, to the Company’s knowledge, are threatened
with any franchisee of the Company or any of its subsidiaries (each
a “Franchisee”) that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse
Effect.
(aa) Each
Franchisee is such by virtue of being a party to a franchise
contract with either the Company or a subsidiary thereof and
assuming each such contract has been duly authorized, executed and
delivered by the parties thereto, other than the Company or a
subsidiary thereof, each such contract constitutes a valid and
legally binding obligation of each party thereto, enforceable
against the Company or a subsidiary thereof in accordance with its
terms, except (i) for any one or more of such franchise
contracts as would not have a Material Adverse Effect, and
(ii) to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency (including,
7
without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(bb) The Company
and each of its Significant Subsidiaries have complied and are
currently complying with the rules and regulations of the United
States Federal Trade Commission and the comparable laws, rules and
regulations of each state or state agency applicable to the
franchising business of the Company and such Significant Subsidiary
in each state in which the Company or such Significant Subsidiary
is doing business, except for any non-compliance that (individually
or in the aggregate with any other such non-compliance) would not
reasonably be expected to have a Material Adverse
Effect.
(cc) No subsidiary
of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto made after the date
hereof).
(dd) The Company
and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety
bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors
are to the knowledge of the Company in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies and instruments; and neither the Company nor any of
its subsidiaries has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto made after the date
hereof).
(ee) The Company
and its subsidiaries possess all governmental licenses,
certificates, permits and other authorizations issued by all
applicable governmental authorities necessary to conduct their
respective businesses, except where failure to possess would not
have a Material Adverse Effect, and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto made after the
date hereof).
8
(ff) The Company
and each of its subsidiaries maintain a system of internal
accounting controls to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to maintain
asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries are not aware of any material weakness
in their internal control over financial reporting. The Company and
its subsidiaries maintain adequate “disclosure controls and
procedures” (as such term is defined in Rule 13a-15e
under the Exchange Act); such disclosure controls and procedures
are effective.
(gg) Except as
described in the Disclosure Package and the Final Prospectus, 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 designated by the Company
at the time of grant as an “incentive stock 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 (the “Grant Date”) 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 stockholder 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
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 rules of the New York Stock Exchange
and any other exchange on which Company securities are traded,
(iv) the per share exercise price of each Stock Option was no
less than the fair market value of a share of Common Stock on the
applicable Grant Date and (v) each such grant was properly
accounted for in accordance with generally accepted accounting
principles in the United States 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 coordinate 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.
(hh) The Company
and its subsidiaries are (i) in compliance with any and all
applicable laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental
Laws”); (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses; and (iii) have not received notice of any actual
or potential liability under any Environmental Law, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or
9
liability would
not, individually or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto made after the date hereof). Except as set forth
in the Disclosure Package and the Final Prospectus, neither the
Company nor any of its subsidiaries has been named as a
“potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(ii) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate,
have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto made after the
date hereof).
(jj) The minimum
funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ERISA”), has
been satisfied by each “pension plan” (as defined in
Section 3(2) of ERISA) which has been established or
maintained by the Company and/or one or more of its subsidiaries,
and the trust forming part of each such plan which is intended to
be qualified under Section 401 of the Code is so qualified;
each of the Company and its subsidiaries has fulfilled its
obligations, if any, under Section 515 of ERISA; neither the
Company nor any of its subsidiaries maintains or is required to
contribute to a “welfare plan” (as defined in
Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602
of ERISA)); each pension plan and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently
applicable provisions of ERISA; and neither the Company nor any of
its subsidiaries has incurred or could reasonably be expected to
incur any withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063, or 4064 of ERISA, or any
other liability under Title IV of ERISA.
(kk) None of the
following events has occurred or exists: (i) a failure to
fulfill the obligations, if any, under the minimum funding
standards of Section 302 of ERISA, and the regulations and
published interpretations thereunder with respect to a Plan,
determined without regard to any waiver of such obligations or
extension of any amortization period; (ii) an audit or, to the
knowledge of the Company, investigation by the Internal Revenue
Service, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other federal or state governmental agency or
any foreign regulatory agency with respect to the employment or
compensation of employees by any of the Company or any of its
subsidiaries that could have a Material Adverse Effect;
or
10
(iii) any
breach of any contractual obligation, or any violation of law or
applicable qualification standards, with respect to the employment
or compensation of employees by the Company or any of its
subsidiaries that could have a Material Adverse Effect. None of the
following events has occurred or is reasonably likely to occur:
(i) a material increase in the aggregate amount of
contributions required to be made to all Plans in the current
fiscal year of the Company and its subsidiaries compared to the
amount of such contributions made in the most recently completed
fiscal year of the Company and its subsidiaries; (ii) a
material increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) of the Company and its subsidiaries
compared to the amount of such obligations in the most recently
completed fiscal year of the Company and its subsidiaries;
(iii) any event or condition giving rise to a liability under
Title IV of ERISA that could have a Material Adverse Effect; or
(iv) the filing of a claim by one or more employees or former
employees of the Company or any of its subsidiaries related to
their employment that could have a Material Adverse Effect. For
purposes of this paragraph, the term “Plan” means a
plan (within the meaning of Section 3(3) of ERISA) subject to
Title IV of ERISA with respect to which the Company or any of its
subsidiaries may have any liability.
(ll) Subject to
the exceptions set forth in clauses (ii) through (iv) of
the second sentence of this Section 1(ii), the Company and/or
its subsidiaries own, possess, license or have other rights to use
all patents, trade and service marks, trade names, copyrights,
domain names (in each case including all registrations and
applications to register same), inventions, trade secrets,
technology and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Preliminary Prospectus and the Final Prospectus to be conducted
(collectively, the “Company Intellectual Property”)
free and clear of all liens or other similar encumbrances, except
as would not have a Material Adverse Effect or as set forth in the
Preliminary Prospectus or the Final Prospectus. Except as would not
have a Material Adverse Effect or as set forth in the Preliminary
Prospectus or the Final Prospectus, (i) to the knowledge of
the Company, there is no infringement or other violation by third
parties of any Company Intellectual Property owned by the Company
or any of its subsidiaries; (ii) there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding
or claim by any third party challenging the Company’s or its
subsidiaries’ rights in or to any Company Intellectual
Property, and to the knowledge of the Company, there is no
reasonable basis for any such claim; (iii) there is no pending
or, to the knowledge of the Company, threatened action,
|
