Wells Fargo Securities, LLC
Banc of America Securities LLC
WELLS FARGO
SECURITIES, LLC
BANC OF AMERICA SECURITIES LLC
As Representatives of the several
Underwriters
c/o WELLS FARGO SECURITIES, LLC
301 South College Street
Charlotte, NC 28288-0613
Introductory. RPM International Inc., a Delaware corporation
(the “Company”), proposes to issue and sell to the
several underwriters named in Schedule A (the
“Underwriters”), acting severally and not jointly, the
respective amounts set forth in such Schedule A of
$300,000,000 aggregate principal amount of the Company’s
6.125% Notes due 2019 (the “Notes”). Wells Fargo
Securities, LLC and Banc of America Securities LLC have agreed to
act as representatives of the several Underwriters (in such
capacity, the “Representatives”) in connection with the
offering and sale of the Notes.
The Notes will be
issued pursuant to an indenture, dated as of February 14, 2008
(the “Base Indenture”), between the Company and The
Bank of New York, as trustee (the “Trustee”). Certain
terms of the Notes will be established pursuant to an
Officers’ Certificate to the Base Indenture (together with
the Base Indenture, the “Indenture”). The Notes will be
issued in book-entry form in the name of Cede & Co., as nominee
of The Depository Trust Company (the “Depositary”),
pursuant to a Letter of Representations, to be dated on or before
the Closing Date (as defined in Section 2 below) (the
“DTC Agreement”), among the Company, the Trustee and
the Depositary.
The Company has
prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-149232), which contains a base prospectus (the
“Base Prospectus”), to be used in connection with the
public offering and sale of debt securities, including the Notes,
and other securities of the Company under the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), and
the offering thereof from time to time in accordance with
Rule 415 under the Securities Act. Such registration
statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under
the Securities Act, including any required information deemed to be
a part thereof at the time of effectiveness pursuant to
Rule 430B under the Securities Act, is called the
“Registration Statement.” The term
“Prospectus” shall mean the final prospectus supplement
relating to the Notes, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and time
that this Agreement is executed (the “Execution Time”)
by the parties hereto. The term
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“Preliminary Prospectus” shall mean
any preliminary prospectus supplement relating to the Notes,
together with the Base Prospectus, that is first filed with the
Commission pursuant to Rule 424(b). Any reference herein to the
Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
that are or are deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act
prior to 4:00 p.m. on October 6, 2009 (the “Initial Sale
Time”). All references in this Agreement to the Registration
Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include
any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, the Prospectus or
the Preliminary Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Preliminary Prospectus, as the
case may be, prior to the Initial Sale Time; and all references in
this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or the Preliminary Prospectus shall be
deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange
Act”), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, after the Initial Sale
Time.
The Company hereby
confirms its agreements with the Underwriters as
follows:
Section 1. Representations
and Warranties of the Company
The Company hereby
represents, warrants and covenants to each Underwriter as of the
date hereof, as of the Initial Sale Time and as of the Closing Date
(in each case, a “Representation Date”), as
follows:
a) Compliance
with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated or threatened
by the Commission, and any request on the part of the Commission
for additional information has been complied with. In addition, the
Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, and the rules and regulations promulgated
thereunder (the “Trust Indenture Act”).
At the respective
times the Registration Statement and any post-effective amendments
thereto (including the filing with the Commission by the Company of
any documents or reports incorporated by reference therein) became
effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will
comply in all material
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respects with
the requirements of the Securities Act and the Trust Indenture Act,
and (ii) did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Date,
neither the Prospectus nor any amendments or supplements thereto
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. Notwithstanding the
foregoing, the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or any post-effective amendment or the Prospectus or any
amendments or supplements thereto made in reliance upon and in
conformity with information furnished to the Company in writing by
any of the Underwriters through the Representatives expressly for
use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the
Representatives consists of the information described as such in
Section 8 hereof.
Each Preliminary
Prospectus and the Prospectus, at the time each was filed with the
SEC, complied in all material respects with the Securities Act, and
the Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
b) Disclosure
Package. The term “Disclosure Package” shall mean
(i) the Preliminary Prospectus dated October 6, 2009 and
(ii) the issuer free writing prospectuses as defined in
Rule 433 of the Securities Act (each, an “Issuer Free
Writing Prospectus”), if any, identified in Annex I hereto.
As of the Initial Sale Time, the Disclosure Package did not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the 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 any Underwriter through the
Representatives consists of the information described as such in
Section 8 hereof.
c) Incorporated
Documents . The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus (i) at the time they
were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the
Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time,
and when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date,
did not or will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
d) Company is a
Well-Known Seasoned Issuer . (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by
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post-effective
amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the
time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the
Securities Act) made any offer relating to the Notes in reliance on
the exemption of Rule 163 of the Securities Act, and
(iv) as of the Execution Time, the Company was and is a
“well known seasoned issuer” as defined in
Rule 405 of the Securities Act. The Registration Statement is
an “automatic shelf registration statement,” as defined
in Rule 405 of the Securities Act, that automatically became
effective not more than three years prior to the Execution Time;
the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to
use of the automatic shelf registration statement form and the
Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.
e) Company is
not an Ineligible Issuer . (i) At the time of filing the
Registration Statement and (ii) as of the Execution Time (with
such date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an Ineligible Issuer
(as defined in Rule 405 of the Securities Act), without taking
account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that
the Company be considered an Ineligible Issuer.
f) Issuer Free
Writing Prospectuses . Each Issuer Free Writing Prospectus, as
of its issue date and at all subsequent times through the
completion of the offering of Notes under this Agreement or until
any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained or incorporated by
reference in the Registration Statement, the Preliminary Prospectus
or the Prospectus. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained or incorporated by reference in the Registration
Statement, the Preliminary Prospectus or the Prospectus the Company
has promptly notified or will promptly notify the Representatives
and has promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
g) Distribution
of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters’
distribution of the Notes, any offering material in connection with
the offering and sale of the Notes other than the Preliminary
Prospectus, the Prospectus, and any Issuer Free Writing Prospectus
reviewed and consented to by the Representatives and included in
Annex I hereto or the Registration Statement.
h) No
Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under
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the
Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly
waived.
i) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
j)
Authorization of the Indenture . The Indenture has been duly
qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
k)
Authorization of the Notes. The Notes to be purchased by the
Underwriters from the Company are in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant
to this Agreement and the Indenture and, at the Closing Date, will
have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles, and will be entitled to the
benefits of the Indenture.
l) Description
of the Notes and the Indenture. The Notes and the Indenture
conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Prospectus.
m) Accuracy of
Statements in Prospectus. The statements in each of the
Preliminary Prospectus and the Prospectus under the captions
“Description of Notes,” “Description of Capital
Stock,” “Description of Debt Securities,”
“Description of Other Securities,” and “Certain
U.S. Federal Income Tax Considerations,” in each case insofar
as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present and
summarize, in all material respects, the matters referred to
therein.
n) No Material
Adverse Change . Except as otherwise disclosed in the
Disclosure Package, subsequent to the respective dates as of which
information is given in the Disclosure Package, (i) there has been
no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings,
management, business, results of operations or prospects, whether
or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one
entity (any such change is called a “Material Adverse
Change”), (ii) there have been no transactions entered
into by the Company or any of its Significant Subsidiaries (as
defined below), other than those in the ordinary course of
business, which are material with respect to the Company and its
Significant Subsidiaries considered as one entity,
(iii) except for regular quarterly dividends on the
Company’s common stock, par value $0.01 per share, in amounts
per share that are consistent with past practice, there has been no
dividend or
5
distribution of
any kind declared, paid or made by the Company on any class of its
capital stock, and (iv) there has not been any material change
in the capital stock, short-term debt or long-term debt of the
Company and its Significant Subsidiaries (as defined below), except
as disclosed in the Disclosure Package.
o) Independent
Accountants. Ernst & Young LLP, who have expressed their
opinion with respect to the Company’s audited financial
statements as of May 31, 2009 and 2008 and for the fiscal
years ended May 31, 2009, 2008 and 2007 incorporated by
reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus, are independent public accountants with respect
to the Company as required by the Securities Act and the Exchange
Act and are an independent registered public accounting firm with
the Public Company Accounting Oversight Board.
p) Preparation
of the Financial Statements. The financial statements together
with the related notes thereto incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the
Prospectus present fairly the consolidated financial position of
the Company and its subsidiaries as of and at the dates indicated
and the results of their operations, stockholders’ equity and
cash flows for the periods specified. Such financial statements
comply as to form with the accounting requirements of the
Securities Act and have been prepared in conformity with generally
accepted accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related
notes thereto. The supporting schedules incorporated by reference
in the Registration Statement, the Preliminary Prospectus and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. No other financial statements are
required to be included in the Registration Statement. The selected
financial data and the summary financial information included in
the Preliminary Prospectus and the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement, the Preliminary Prospectus and the
Prospectus. In addition, if any pro forma financial statements of
the Company and its subsidiaries and the related notes thereto are
included in the Registration Statement, the Preliminary Prospectus
and the Prospectus, such pro forma financial statements and related
notes present fairly the information shown therein, have been
prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
q)
Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its significant
subsidiaries (as defined in Rule 1-02(w) of
Regulation S-X, the “Significant Subsidiaries”)
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation and has corporate power and authority to own or
lease, as the case may be, and operate its properties and to
conduct its business as described in the Disclosure Package and the
Prospectus and, in the case of the Company, to enter into and
perform its obligations under this Agreement. Each of the Company
and each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions
6
where the
failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Change. All of the issued and outstanding shares of capital stock
of each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and, except for
directors’ qualifying shares and third party interests in
joint ventures in which the Company invests, are owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
The Company does not have any subsidiary not listed on
Exhibit 21.1 to its Annual Report on Form 10-K for the fiscal
year ended May 31, 2009 which is required to be so
listed.
r)
Capitalization and Other Capital Stock Matters. The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Disclosure Package and the Prospectus under the
caption “Capitalization” (other than for subsequent
issuances, if any, pursuant to the employee benefit plans or other
agreements described in the Disclosure Package and the Prospectus
or upon exercise of convertible securities or outstanding options
described in the Disclosure Package and the Prospectus, as the case
may be).
s)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor
any of its Significant Subsidiaries is (i) in violation or in
default (or, with the giving of notice or lapse of time or both,
would be in default) (“Default”) under its charter or
by-laws, (ii) in Default under any indenture, mortgage, loan
or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject (each, an “Existing Instrument”) or
(iii) in violation of 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, as applicable,
except, with respect to clauses (ii) and (iii) only, for such
Defaults or violations as would not, individually or in the
aggregate result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby, by the
Disclosure Package and by the Prospectus (i) have been duly
authorized by all necessary corporate action and will not result in
any Default under the charter or by-laws of the Company or any
subsidiary, (ii) will not conflict with or constitute a breach
of, or Default or a Debt Repayment Triggering Event (as defined
below) 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 subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, and (iii) will not
result in any violation of any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries 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. No consent, approval, authorization or
other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency is required for the
Company’s execution, delivery and performance of this
Agreement or consummation of the transactions contemplated hereby,
by the Disclosure Package or by the Prospectus, except such as have
been obtained or made by the Company and are in full force and
effect under the Securities Act, the Trust Indenture Act,
applicable state securities or blue sky laws and from the Financial
Industry Regulatory Authority (“FINRA”). As used
herein, a “Debt Repayment Triggering Event” means any
event or
7
condition which
gives, or with the giving of notice or lapse of time or both would
give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
issued by the Company, the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
t) No Material
Actions or Proceedings. Except as disclosed in the Prospectus
and the Disclosure Package, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the
Company’s knowledge, threatened (i) against or affecting
the Company or any of its subsidiaries, (ii) which has as the
subject thereof any officer or director of, or property owned or
leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters
related to the Company or its subsidiaries, where any such action,
suit or proceeding, if determined adversely, could, individually or
in the aggregate, result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this
Agreement.
u) Labor
Matters. No material dispute with the employees of the Company
or any of its subsidiaries exists, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any
of its or its subsidiaries’ principal suppliers, contractors
or customers, that could, individually or in the aggregate, result
in a Material Adverse Change.
v) Intellectual
Property Rights. Except as set forth in the Disclosure Package
and the Prospectus, to the Company’s knowledge, the Company
or its subsidiaries own or possess a valid right to use all
patents, trademarks, service marks, trade names, copyrights,
patentable inventions, trade secret, know-how and other
intellectual property (collectively, the “Intellectual
Property”) used by the Company or its subsidiaries in, and
material to, the conduct of the Company’s or its
subsidiaries’ business as now conducted or as proposed in the
Disclosure Package and the Prospectus to be conducted. Except as
set forth in the Disclosure Package and the Prospectus, there is no
material infringement by third parties of any of the
Company’s Intellectual Property and there are no legal or
governmental actions, suits, proceedings or claims pending or, to
the Company’s knowledge, threatened, against the Company
(i) challenging the Company’s rights in or to any
Intellectual Property, (ii) challenging the validity or scope
of any Intellectual Property owned by the Company, or
(iii) alleging that the operation of the Company’s
business as now conducted infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary
rights of a third party, and the Company is unaware of any facts
which would form a reasonable basis for any such claim.
w) All
Necessary Permits, etc. The Company and each Significant
Subsidiary possess such valid and current certificates,
authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any Significant Subsidiary
has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such certificate,
authorization, permit, license, approval, consent or other
authorization which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, could result in a
Material Adverse Change.
x) Title to
Properties. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company and each of its
subsidiaries has good and marketable title to all the
8
properties and
assets reflected as owned in the financial statements referred to
in Section 1(p) above (or elsewhere in the Disclosure Package and
the Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and
other defects, except such as do not materially and adversely
affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company or
any subsidiary are held under valid and enforceable leases, with
such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
y) Tax Law
Compliance. The Company and its subsidiaries have filed all
necessary federal, state, local and foreign income and franchise
tax returns in a timely manner and have paid all taxes required to
be paid by any of them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them,
except for any taxes, assessments, fines or penalties as may be
being contested in good faith and by appropriate proceedings,
except where a default to make such filings or payments would not
result in a Material Adverse Change. The Company has made
appropriate provisions in the applicable financial statements
referred to in Section 1(p) above in respect of all federal, state,
local and foreign income and franchise taxes for all current or
prior periods as to which the tax liability of the Company or any
of its subsidiaries has not been finally determined.
z) Company Not
an “Investment Company.” Neither the Company nor
any of its subsidiaries is, nor after receipt of payment for the
Notes and the application of the proceeds thereof as contemplated
under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will be, an “investment
company” or an entity “controlled” by an
“investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”).
aa)
Insurance. The Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering
such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real
and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism
and earthquakes. All policies of insurance insuring the Company or
any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause; and, except as set forth in the Disclosure Package and the
Prospectus, neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for. The Company
has no reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result
in a Material Adverse Change.
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bb) No Price
Stabilization or Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to or
that would be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes.
cc) Related
Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Preliminary
Prospectus or the Prospectus that have not been described as
required.
dd) No Unlawful
Contributions or Other Payments. None of the Company, any of
its subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
FCPA, including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
ee) 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 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, (ii) 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, (iii) the per share exercise price of
each Stock Option was equal to the fair market value of a share of
common stock on the applicable Grant Date and (iv) each such
grant was 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 there 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.
10
ff) No Conflict
with Money Laundering Laws. The operations of the Company and
its subsidiaries are and have been conducted at all times in
compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and 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 with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
gg) No Conflict
with OFAC Laws. Neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds, to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
hh) Compliance
with Environmental Laws. Except as otherwise disclosed in the
Disclosure Package and the Prospectus, (i) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign law, regulation, order, permit or other
requirement relating to pollution or protection of human health or
the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products
(collectively, “Materials of Environmental Concern”),
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Materials of Environment Concern (collectively,
“Environmental Laws”), which violation includes, but is
not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the
business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received
any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any
Environmental Law, except as would not, individually or in the
aggregate, result in Material Adverse Change; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources
damages, property damages, personal injuries, attorneys’ fees
or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past
(collectively, “Environmental Claims”), pending or, to
the best of the Company’s knowledge, threatened against the
Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either
11
contractually
or by operation of law, except as would not, individually or in the
aggregate, result in a Material Adverse Change; (iii) to the
best of the Company’s knowledge, there are no past, present
or anticipated future actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge, presence or disposal of any Material
of Environmental Concern, that reasonably could result in a
violation of any Environmental Law, require expenditures to be
incurred pursuant to Environmental Law, or form the basis of a
potential Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law,
except as would not, individually or in the aggregate, result in a
Material Adverse Change; and (iv) neither the Company nor any
of its subsidiaries is subject to any pending or threatened
proceeding under Environmental Law to which a governmental
authority is a party and which is reasonably likely to result in a
Material Adverse Change.
ii) Periodic
Review of Costs of Environmental Compliance. In the ordinary
course of its business, the Company conducts a periodic review of
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 and the amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, reasonably expected to
result in a Material Adverse Change.
jj) ERISA
Compliance. The Company and its subsidiaries and any
“employee benefit plan” (as defined in
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations
thereunder (collectively, “ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance in all
material respects with ERISA. “ERISA Affiliate” means,
with respect to the Company or a subsidiary, any member of any
group of organizations described in Sections 414(b), (c),
(m) or (o) of the Internal Revenue Code of 1986, as
amended (the “Internal Revenue Code”), of which the
Company or such subsidiary is a member. No “reportable
event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit
plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No “employee
benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit
plan,” (ii) Sections 412, 4971 or 4975 of the
Internal Revenue Code, or (iii) Section 4980B of the
Internal Revenue Code with respect to the excise tax imposed
thereunder. Each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of
the Internal Revenue Code has received a favorable determination
letter from the Internal Revenue Service and nothing has
occurred,
12
whether by
action or failure to act, which is reasonably likely to cause
disqualification of any such employee benefit plan under Section
401(a) of the Internal Revenue Code.
kk)
Sarbanes-Oxley Compliance . There is and has been no failure
on the part of the Company and any of the Company’s directors
or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
ll)
Company’s Accounting System. The Company and its
subsidiaries maintain effective internal control over financial
reporting, as such term is defined in Rule 13a-15(f) under the
Exchange Act.
mm) Internal
Controls and Procedures. The Company maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance
with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
nn) No Material
Weakness in Internal Controls. Except as disclosed in the
Disclosure Package and the Prospectus or in any document
incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
oo) Accuracy of
Exhibits . There are no franchises, contracts or documents
which are required to be described in the Registration Statement,
the Disclosure Package, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits to the
Registration Statement which have not been so described and filed
as required.
Any certificate
signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale
and Delivery of the Notes.
a)
The Notes. The Company agrees to issue and sell to the
several Underwriters, severally and not jointly, all of the Notes
upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the
Company the aggregate principal amount of Notes set forth opposite
their names on Schedule A at a purchase price of 99.245% of
the principal amount of the Notes, payable on the Closing
Date.
13
b)
The Closing Date. Delivery of certificates for the Notes in
global form to be purchased by the Underwriters and payment
therefor shall be made at the offices of Squire, Sanders &
Dempsey L.L.P., 4900 Key Tower, 127 Public S
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