Exhibit 1.2
EXECUTION COPY
5.10 % Senior Notes due 2015
ALBEMARLE CORPORATION
UNDERWRITING AGREEMENT
January 13, 2005
BANC OF AMERICA SECURITIES LLC
UBS SECURITIES LLC
BEAR, STEARNS & CO. INC.
As Representatives of the
several Underwriters named
in
Schedule I attached
hereto
c/o Banc of America Securities LLC
9 West 57 th Street
New York, New York 10019
c/o UBS Securities LLC
677 Washington Blvd
Stamford, Connecticut 06901
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies/Gentlemen:
Albemarle Corporation, a corporation
organized and existing under the laws of the Commonwealth of
Virginia (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the
“Underwriters”) $325,000,000 in aggregate principal
amount of its 5.10% Senior Notes due 2015 (the
“Notes”). The Notes are to be issued pursuant to an
Indenture, dated as of January 20, 2005, between the Company and
The Bank of New York, as Trustee (the “Trustee”), as
supplemented by the First Supplemental Indenture, dated of January
20, 2005 (as supplemented, the “Indenture”). Banc of
America Securities LLC, UBS Securities LLC and Bear, Stearns &
Co. Inc. are acting as representatives (together, the
“Representatives”), in connection with the offering and
sale of the Notes contemplated herein (the
“Offering”).
1. Representations and Warranties
of the Company . The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-119723), and amendments
thereto, and related preliminary prospectuses, under the Securities
Act of 1933, as amended (the “Securities Act”),
relating to the registration of certain securities (the
“Shelf Securities”) of the Company to be sold from time
to time by the Company. Such registration statement, as so amended
(including post-effective amendments, if any), has been declared
effective by the Commission and copies of which have heretofore
been delivered to the Underwriters. The registration statement, as
amended at the time it became effective, is hereinafter referred to
as the “Registration Statement.” No other document with
respect to the Registration Statement has heretofore been filed
with the Commission other than the prospectus supplement filed by
the Company with the Commission pursuant to Rule 424(b) (as
defined) with respect to the Company’s offering of shares of
its Common Stock (as defined) as described in the Prospectus. All
of the Notes have been registered under the Securities Act pursuant
to the Registration Statement. Based on communications from the
Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. The
Company, if required by the Securities Act and the rules and
regulations of the Commission thereunder (including the rules and
regulations of the Commission under the Exchange Act (defined
below), the “Rules and Regulations”), proposes to file
a prospectus supplement with the Commission pursuant to Rule 424(b)
under the Securities Act (“Rule 424(b)”). The
prospectus supplement specifically relating to the Notes, in the
form in which it is to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations (the “Prospectus
Supplement”), along with the base prospectus included in the
Registration Statement at the time the Registration Statement
became effective (the “Base Prospectus”), is
hereinafter referred to as the “Prospectus,” except
that if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection
with the Offering which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be
filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term “Prospectus” shall also refer to
such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the
Underwriters for such use. Any preliminary prospectus supplement or
prospectus supplement subject to completion included in the
Registration Statement or filed with the Commission pursuant to
Rule 424 under the Securities Act specifically relating to the
Notes together with the Base Prospectus is hereafter called a
“Preliminary Prospectus.” Any reference herein 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
which were filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on or before the
effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case
may be, and any reference herein to the terms “amend”,
“amendment” or “supplement” with respect to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the effective date of
the Registration Statement, the date of such Preliminary Prospectus
or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so
filed. All references in this Agreement to the Registration
Statement, the Preliminary Prospectus and the
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Prospectus, or any amendments or
supplements to any of the foregoing shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System
(“EDGAR”).
(b) At the time of the effectiveness
of the Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the
Prospectus is first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission, when any
document filed under the Exchange Act was or is filed and at the
Closing Date, the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied or will comply
in all material respects with the applicable provisions of the
Securities Act, the Exchange Act, the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”), and the Rules
and Regulations and did not and will not contain an untrue
statement of a material fact and did not and will not omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the
Prospectus or any related Preliminary Prospectus in light of the
circumstances under which they were made, not misleading. When any
related Preliminary Prospectus was first filed with the Commission
(whether filed as part of the registration statement for the
registration of the Notes or any amendment or supplement thereto or
pursuant to Rule 424 under the Securities Act) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof
and supplements thereto complied in all material respects with the
applicable provisions of the Securities Act, the Exchange Act and
the Rules and Regulations and did not contain an untrue statement
of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. No representation and warranty is made
in this subsection (b), however, with respect to any information
contained in or omitted from the Registration Statement or the
Prospectus or Preliminary Prospectus or any amendment thereof or
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 use
therein. The parties acknowledge and agree that such information
provided by or on behalf of any Underwriter consists solely of the
material included in the last paragraph on the cover page of the
Prospectus and in paragraphs 3, 6, 7, 8 and 11 (third and fourth
sentences only) under the caption “Underwriting” in the
Prospectus.
(c) PricewaterhouseCoopers LLP whose
reports appear or are incorporated by reference in the Registration
Statement and the Prospectus, who have certified the financial
statements and supporting schedules and information of the Company
and its subsidiaries that are included or incorporated by reference
in the Registration Statement and the Prospectus, and KPMG
Accountants N.V. whose reports appear or are incorporated by
reference in the Registration Statement and the Prospectus, who
have certified certain other financial statements and supporting
schedules and information of the refinery catalysts business of
Akzo Nobel N.V. (“Akzo Nobel Refinery Catalysts”) that
are included or incorporated by reference in the Registration
Statement and the Prospectus, each are registered public
accountants as required by the Securities Act, the Exchange Act,
and the Rules and Regulations.
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(d) Subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, except as disclosed in the
Registration Statement and the Prospectus, the Company has not
declared, paid or made any dividends or other distributions of any
kind on or in respect of its capital stock and there has been no
material adverse change or any development involving a prospective
material adverse change, whether or not arising from transactions
in the ordinary course of business, in or affecting (i) the
business, condition (financial or otherwise), results of
operations, properties or prospects of the Company and each
subsidiary of the Company, taken as a whole; or (ii) the Offering
or any other transaction contemplated by this Agreement, the
Registration Statement or the Prospectus (a “Material Adverse
Effect”). Since the date of the latest balance sheet
presented, or incorporated by reference, in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or
obligations, which are material to the Company and its subsidiaries
taken as a whole, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and
the Prospectus.
(e) The authorized, issued and
outstanding capital stock of the Company (i) was, as of September
30, 2004, as set forth in the Prospectus in the column headed
“Actual” under the caption “Capitalization”
and (ii) after giving effect to the Offering, the offering of
shares of the Company’s common stock, par value $.01 per
share (the “Common Stock”) as described in the
Prospectus and the other transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, will be
as set forth in the column headed “As Further Adjusted for
Notes Offering” under the caption
“Capitalization”, except for any immaterial changes
resulting from the issuance of the Common Stock pursuant to
employee benefit plans, stock option plans or other employee
compensation plans existing on the date hereof. All of the issued
and outstanding shares of capital stock of the Company are fully
paid and non-assessable and have been duly and validly authorized
and issued, in compliance with all applicable state and federal
securities laws and not in violation of or subject to any
preemptive or similar right that does or will entitle any person,
upon the issuance or sale of any security, to acquire from the
Company or any Subsidiary any Common Stock or other equity security
of the Company or any Subsidiary or any security convertible into,
or exercisable or exchangeable for, Common Stock or any other such
security (any “Relevant Security”), except for such
rights as may have been fully satisfied or waived prior to the
effectiveness of the Registration Statement. Except as disclosed in
the Registration Statement and the Prospectus, neither the Company
nor any Subsidiary has outstanding warrants, options to purchase,
or any preemptive rights or other rights to subscribe for or to
purchase, or any contracts or commitments to issue or sell, any
Relevant Security.
(f) The subsidiaries listed on
Exhibit A hereto are the only “subsidiaries” (the
“Subsidiaries”) of the Company within the meaning of
Rule 405 under the Securities Act. Except for the Subsidiaries and
as otherwise listed on Exhibit B hereto or as disclosed in the
Registration Statement and the Prospectus, the Company holds no
ownership or other interest, nominal or beneficial, direct or
indirect, in any corporation, partnership, joint venture or other
business entity.
(g) The Company has no
“significant subsidiaries” within the meaning of Rule
405 under the Securities Act, other than Albemarle International
Corporation. The Subsidiaries listed on Exhibit C hereto (the
“Material Subsidiaries”) are all the Subsidiaries
that
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are material to the business and
operations of the Company. All of the issued shares of capital
stock of or other ownership interests in each of the Material
Subsidiaries have been duly and validly authorized and issued and
are fully paid and, to the extent applicable in the jurisdiction of
organization, are non-assessable and (except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the Company
free and clear of any lien, charge, mortgage, pledge, security
interest, claim, equity, trust or other encumbrance, preferential
arrangement, defect or restriction of any kind whatsoever (any
“Lien”). Each of the Company and the Material
Subsidiaries has been duly organized and validly exists as a
corporation, partnership or limited liability company and is in
good standing (to the extent applicable in the jurisdiction of
organization) under the laws of its jurisdiction of organization.
Each of the Company and the Material Subsidiaries is duly qualified
to do business and is in good standing as a foreign corporation,
partnership or limited liability company in each jurisdiction (to
the extent applicable in the relevant jurisdiction), in which the
character or location of its properties (owned, leased or licensed)
or the nature or conduct of its business makes such qualification
necessary, except in such jurisdictions in which the failure to be
so qualified or in good standing (individually and in the
aggregate) could not reasonably be expected to have a Material
Adverse Effect.
(h) Each of Fábrica Carioca de
Catalisadores S.A., Nippon Ketjen Co., Ltd., Eurecat S.A., Eurecat
U.S. Incorporated and Jordan Bromine Company Ltd. (collectively,
the “Joint Ventures”) has been duly organized, validly
exists as a corporation, sociedade anônima, société
anonyme or limited company and is in good standing (to the extent
applicable in the jurisdiction of organization) under the laws of
its jurisdiction of organization. Each of the Joint Ventures is
duly qualified to do business and is in good standing as a foreign
corporation, sociedade anônima, société anonyme or
limited company in each jurisdiction (to the extent applicable in
the relevant jurisdiction), in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except in such
jurisdictions in which the failure to be so qualified or in good
standing (individually and in the aggregate) could not reasonably
be expected to have a Material Adverse Effect.
(i) Each of the Company, the
Subsidiaries and the Joint Ventures has all requisite power and
authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses, filings and
permits of, with and from all judicial, regulatory and other legal
or governmental agencies and bodies and all third parties, foreign
and domestic (collectively, the “Consents”), to own,
lease and operate its properties and conduct its business as it is
now being conducted and as disclosed in the Registration Statement
and the Prospectus, and each such Consent is valid and in full
force and effect, except where the failure to be valid and in full
force and effect would not (individually or in the aggregate) have
a Material Adverse Effect, and neither the Company, any Subsidiary,
or any Joint Venture has received notice of any investigation or
proceedings which could reasonably be expected to result in the
revocation of, or imposition of a restriction on, any such Consent
which (individually or in the aggregate) could have a Material
Adverse Effect. No Consent contains a materially burdensome
restriction not adequately disclosed in the Registration Statement
and the Prospectus.
(j) The Company has full right,
power and authority to execute and deliver this Agreement, the
Indenture and the Notes, to perform its obligations hereunder
and
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thereunder and to consummate the
transactions contemplated by this Agreement, the Indenture, the
Notes, the Registration Statement and the Prospectus.
(k) This Agreement, the Indenture,
the Notes and the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus have been duly and
validly authorized by the Company. This Agreement has been duly and
validly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and except
as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(l) The Indenture has been duly
qualified under the Trust Indenture Act and, when duly executed and
delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and except as
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(m) The Notes, when duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture.
(n) The Indenture and the Notes will
conform in all material respects to the respective statements
relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(o) The execution, delivery, and
performance of this Agreement, the Indenture and the Notes and
consummation of the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus do not and will not
(i) conflict with, require consent under or result in a breach of
any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would 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 Subsidiary pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement, instrument,
franchise, license or permit to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their
respective properties, operations or assets may be bound or (ii)
violate or conflict with any provision of the certificate or
articles of incorporation, bylaws, certificate of formation,
limited
6
liability company agreement,
partnership agreement or other organizational documents of the
Company or any Material Subsidiary, or (iii) violate or conflict in
any material respect with any law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, domestic or foreign,
applicable to the Company or any Material Subsidiary, except in the
case of clause (i) above, as would not (individually or in the
aggregate) have a Material Adverse Effect.
(p) No Consent of, with or from any
judicial, regulatory or other legal or governmental agency or body
or any third party, foreign or domestic, is required for the
execution, delivery and performance of this Agreement, the
Indenture or the Notes or the consummation of the Offering and the
other transactions contemplated by this Agreement, the Registration
Statement and the Prospectus, including the issuance, sale and
delivery of the Notes to be issued, sold and delivered hereunder,
except the registration under the Securities Act of the Notes
pursuant to the Registration Statement, which has become effective,
qualification of the Indenture pursuant to the Trust Indenture Act,
which has been accomplished, and such Consents as may be required
under state securities or blue sky laws or the bylaws and rules of
the National Association of Securities Dealers, Inc. (the
“NASD”) or NASD Regulation, Inc. (“NASDR”)
in connection with the purchase and distribution of the Notes by
the Underwriters.
(q) Except as disclosed in the
Registration Statement and the Prospectus, there is no judicial,
regulatory, arbitral or other legal or governmental proceeding or
other litigation or arbitration, domestic or foreign, pending to
which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is
the subject which, individually or in the aggregate, if determined
adversely to the Company or any Subsidiary, would have a Material
Adverse Effect; to the Company’s knowledge, no such
proceeding, litigation or arbitration is threatened or
contemplated; and the defense of all such proceedings, litigation
and arbitration against or involving the Company or any Subsidiary
would not have a Material Adverse Effect.
(r) The acquisition of Akzo Nobel
Refinery Catalysts was consummated in accordance with the terms of
the International Share and Business Sale Agreement, dated as of
July 16, 2004, by and between Akzo Nobel N.V. and Albemarle
Catalysts International, L.L.C. and the Company, as amended and
supplemented, without any waiver thereto or modification
thereof.
(s) Akzo Nobel Refinery Catalysts is
a Foreign Business within the meaning of Rule 1-02 of Regulation
S-X of the Rules and Regulations.
(t) The financial statements,
including the notes thereto, and the supporting schedules included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position as of the dates
indicated and the cash flows and results of operations for the
periods specified of each of (i) the Company and its consolidated
subsidiaries (the “Company Financial Statements”) and
(ii) Akzo Nobel Refinery Catalysts and its combined subsidiaries
(the “Akzo Financial Statements”); except as otherwise
stated in the Registration Statement and the Prospectus, the
Company Financial Statements have been prepared in conformity with
United States generally accepted accounting principles applied on a
consistent basis throughout the periods involved and the Akzo
Financial Statements have been
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prepared in conformity with
accounting principles generally accepted in the Netherlands applied
on a consistent basis throughout the periods involved; and the
supporting schedules included in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein. Each of the Company Financial Statements and the Akzo
Financial Statements has been prepared in accordance with the
applicable requirements of the Securities Act, the Exchange Act and
the Rules and Regulations. No other financial statements or
supporting schedules are required to be included in the
Registration Statement or the Prospectus. The other financial and
statistical information and data included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information included therein and have been prepared on a
basis consistent with that of the financial statements that are
included or incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the respective
entities presented therein.
(u) There are no pro forma financial
statements which are required to be included or incorporated by
reference in the Registration Statement and Prospectus in
accordance with Regulation S-X of the Rules and Regulations which
have not been included as so required. The assumptions used in
preparing the pro forma financial information included in the
Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable
to the transactions or events described therein; the related
adjustments made in the preparation of such pro forma financial
information give appropriate effect to those assumptions; and such
pro forma financial information reflects the proper application of
those adjustments to the corresponding historical financial
statement amounts. The pro forma financial information and
statements, as applicable, included in the Registration Statement
and the Prospectus has been properly compiled and prepared in
accordance with the applicable requirements of the Securities Act,
the Exchange Act and the Rules and Regulations and includes all
adjustments necessary to present fairly in accordance with United
States generally accepted accounting principles the pro forma
financial position of the respective entity or entities presented
therein at the respective dates indicated and their cash flows and
the results of operations for the respective periods
specified.
(v) The statistical,
industry-related and market-related data included in the
Registration Statement and the Prospectus are based on or derived
from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the
sources from which they are derived.
(w) The Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act
and files reports with the Commission on EDGAR. The Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and the
outstanding shares of Common Stock are listed on the NYSE (as
defined in Section 13(b) below) and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or
de-listing the Common Stock from the NYSE, nor has the Company
received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(x) The Company and its Subsidiaries
maintain a system of internal accounting and other controls
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or
specific authorizations, (ii) transactions
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are recorded as necessary to permit
preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization, and (iv) the recorded accounting for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(y) Neither the Company nor any of
its affiliates (within the meaning of Rule 144 under the Securities
Act) has taken, directly or indirectly, any action which
constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Notes.
(z) Except as disclosed in the
Registration Statement and the Prospectus, no person has any rights
to require registration of any security as part or on account of,
or otherwise in connection with, the offer and sale of the Notes
contemplated hereby, and any such rights so disclosed have either
been fully complied with by the Company or effectively waived by
the holders thereof, and any such waivers remain in full force and
effect.
(aa) The conditions for use of Form
S-3 to register the Offering under the Securities Act, as set forth
in the General Instructions to such Form, have been
satisfied.
(bb) The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the Securities Act, the Exchange Act and the Rules and
Regulations.
(cc) Each of the Company and the
Material Subsidiaries is not now and, at all times up to and
including consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, and after
giving effect to application of the net proceeds of the Offering,
will not be, subject to registration as an “investment
company” under the Investment Company Act of 1940, as
amended, and is not and will not be an entity
“controlled” by an “investment company”
within the meaning of such act.
(dd) There are no contracts or other
documents (including, without limitation, any voting agreement),
which are required to be described in the Registration Statement
and the Prospectus or filed as exhibits to the Registration
Statement or as exhibits to any document incorporated by reference
or deemed to be incorporated by reference in the Registration
Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or
filed.
(ee) No relationship, direct or
indirect, exists between or among any of the Company or any
affiliate of the Company, on the one hand, and any director,
officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by
the Securities Act, the Exchange Act or the Rules and Regulations
to be described in the Registration Statement or the Prospectus
which is not so described and described as required. There are no
outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of
indebtedness by the
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Company to or for the benefit of any
of the officers or directors of the Company or any of their
respective family members, except as disclosed in the Registration
Statement and the Prospectus. The Company has not, in violation of
the Sarbanes-Oxley Act of 2002, directly or indirectly, including
through a Subsidiary, extended or maintained credit, arranged for
the extension of credit, or renewed or amended an extension of
credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(ff) Except as disclosed in the
Registration Statement and the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the transactions contemplated by
this Agreement, the Registration Statement and the Prospectus or,
to the Company’s knowledge, any arrangements, agreements,
understandings, payments or issuance with respect to the Company or
any of its officers, directors, shareholders, partners, employees,
Subsidiaries or affiliates that may affect the Underwriters’
compensation as determined by the NASD.
(gg) The Company and each Material
Subsidiary own or lease all such properties as are necessary to the
conduct of their respective business as presently operated and as
proposed to be operated as described in the Registration Statement
and the Prospectus. The Company and the Material Subsidiaries have
good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them,
in each case free and clear of all Liens except such as are
described in the Registration Statement and the Prospectus or such
as do not (individually or in the aggregate) materially affect the
value of such property or interfere with the use made or proposed
to be made of such property by the Company and the Material
Subsidiaries; and any real property and buildings held under lease
or sublease by the Company and the Material Subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material to, and do not interfere with, the
use made and proposed to be made of such property and buildings by
the Company and the Material Subsidiaries. Neither the Company nor
any Subsidiary has received any notice of any claim adverse to its
ownership of any real or personal property or of any claim against
the continued possession of any real property, whether owned or
held under lease or sublease by the Company or any Subsidiary which
would (individually or in the aggregate) result in a Material
Adverse Effect.
(hh) The Company and each Subsidiary
(i) own or possess adequate right to use all patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses,
formulae, customer lists, and know-how and other intellectual
property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures, “Intellectual Property”) necessary for the
conduct of their respective businesses as being conducted and as
described in the Registration Statement and Prospectus, except
where the failure to own or possess such rights, either singly or
in the aggregate, would not have a Material Adverse Effect; and
(ii) have no reason to believe that the conduct of their respective
businesses does or will conflict with, and have not received any
notice of any claim of conflict with, any such right of others,
except for any such conflicts, either singly or in the aggregate,
that would not result in a Material Adverse Effect. To the
Company’s knowledge, all material technical information
developed by and belonging to the Company or any Subsidiary which
has not been patented has
10
been kept confidential. To the
Company’s knowledge, there is no infringement by third
parties of any such Intellectual Property; there is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s or
any Subsidiary’s rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; and there is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Company
is unaware of any other fact which would form a reasonable basis
for any such claim, except for such actions, suits, proceedings or
claims that would not (either individually or in the aggregate)
result in a Material Adverse Effect.
(ii) The Company maintains insurance
in such amounts and covering such risks as the Company reasonably
considers adequate for the conduct by the Company and the
Subsidiaries of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries, all of which insurance is
in full force and effect, except where the failure to maintain such
insurance could not reasonably be expected to have a Material
Adverse Effect. There are no material claims by the Company or any
Subsidiary under any such policy or instrument as to which any
insurance company is denying liability, has indicated that it
intends to deny liability or is defending under a reservation of
rights clause. The Company reasonably b
