Exhibit 10.1
THE WASHINGTON POST
COMPANY
7.250% Notes due February 1,
2019
Underwriting
Agreement
January 27, 2009
J.P. Morgan Securities
Inc.
Citigroup Global Markets Inc.
As Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
The Washington Post Company, a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters listed in Schedule 1
hereto (the “ Underwriters ”), for whom you are
acting as representatives (the “ Representatives
”), $400,000,000 principal amount of its 7.250% Notes due
February 1, 2019 (the “ Securities ”). The
Securities will be issued pursuant to an indenture (the “
Base Indenture ”) dated as of February 17, 1999
between the Company and The Bank of New York Mellon Trust Company,
N.A., as successor to The First National Bank of Chicago, as
Trustee (the “ Trustee ”), as amended and
supplemented by the first supplemental indenture (the “
First Supplemental Indenture ”) dated as of
September 22, 2003 among WP Company LLC, the Company and the
Trustee and as amended and supplemented by the second supplemental
indenture (the “ Second Supplemental Indenture
”) to be dated as of January 30, 2009 between the
Company and the Trustee (the Base Indenture, as so amended and
supplemented by the First Supplemental Indenture and the Second
Supplemental Indenture, the “ Indenture
”).
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Securities, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “
Securities Act ”), a registration statement on Form
S-3 (File No. 333-155374), including a prospectus, relating to
the Securities. Such registration statement, as amended at the time
it becomes effective, including the information, if any,
deemed
pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of its effectiveness (“ Rule 430 Information ”),
is referred to herein as the “ Registration Statement
”; and as used herein, the term “ Preliminary
Prospectus ” means each prospectus included in such
registration statement (and any amendments thereto) before it
becomes effective, any prospectus filed with the Commission
pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “
Prospectus ” means the prospectus in the form first
used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of
sales of the Securities. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities
Act (the “ Rule 462 Registration Statement ”),
then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be and any reference to
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Exchange Act ”) that are deemed to be
incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to the time when sales
of the Securities were first made (the “ Time of Sale
”), the Company had prepared the following information
(collectively, the “ Time of Sale Information
”): a Preliminary Prospectus dated January 27, 2009, and
each “free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Schedule 2 hereto as
constituting part of the Time of Sale Information.
2. Purchase of the Securities by
the Underwriters . (a) The Company agrees to issue and
sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal
amount of Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price equal to 98.964% of the
principal amount thereof plus accrued interest, if any, from
January 30, 2009, to the Closing Date (as defined below). The
Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the
Underwriters intend to make a public offering of the Securities as
soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the
Securities on the
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terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell Securities purchased by it to
or through any Underwriter.
(c) Payment for and delivery of the
Securities will be made at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, NY 10017 at 10:00 A.M.,
New York City time, on January 30, 2009, or at such other time
or place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may
agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “ Closing Date
”.
(d) Payment for the Securities shall
be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representatives against
delivery to the nominee of The Depository Trust Company, for the
account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “ Global
Note ”), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on
the business day prior to the Closing Date.
(e) The Company acknowledges and
agrees that (i) the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the
Company with respect to the offering of Securities contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person and (ii) the
Company’s engagement of the Underwriters in connection with
the offering and the process leading up to the offering is as
independent contractors and not in any other capacity.
Additionally, neither the Representatives nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company. The Company agrees that it will not claim
that the Underwriters have rendered advisory services of any nature
or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of
the
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Securities Act that has been filed with the
Commission not earlier than three years prior to the date hereof;
and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has
been initiated or threatened by the Commission; as of the
applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and at the
Closing Date will comply in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “ Trust Indenture Act ”), and
did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date, the Prospectus
did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto. The
statistical and industry data included in the Prospectus are based
on or derived from sources that the Company believes to be reliable
and accurate.
(b) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in any Preliminary Prospectus.
(c) Time of Sale Information.
The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with
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respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Time of Sale
Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and
no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(d) Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clauses
(i) (ii) and (iii) below) an “ Issuer Free
Writing Prospectus ”) other than (i) any document
not constituting a prospectus pursuant to Section 2(a)(10)(a)
of the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule 2 hereto as constituting
the Time of Sale Information and (v) any electronic road show
or other written communications, in each case approved in writing
in advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Time of Sale
Information, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(e) Incorporated Documents .
The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Exchange Act and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, 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
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the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(f) Financial Statements. The
financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial
position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information
shown thereby.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, results of operations
or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus.
(h) Organization and Good
Standing. The Company and each of its significant subsidiaries,
as defined in Rule 1-02 of Regulation S-X under the Exchange Act,
have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified, in good standing or have such power
or
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authority would not, individually or in the
aggregate, have a material adverse effect on the business,
properties, management, financial position, results of operations
or prospects of the Company and its subsidiaries taken as a whole
or on the performance by the Company of its obligations under the
Securities (a “Material Adverse Effect”).
(i) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the
“ Transaction Documents ”) and to perform its
obligations hereunder and thereunder; and all corporate action
required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly
and validly taken.
(j) The Indenture. The
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles
relating to enforceability (collectively, the “
Enforceability Exceptions ”).
(k) The Securities . The
Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company
in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(l) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company.
(m) Descriptions of the
Transaction Documents . Each Transaction Document conforms in
all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(n) No Violation or Default.
Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
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(o) No Conflicts. The
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Consents Required . No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of each of the Transaction Documents,
the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for
such consents, approvals, authorizations, orders and registrations
or qualifications (i) as have been obtained under the
Securities Act and the Trust Indenture Act and (ii) as may be
required under applicable state securities laws in connection with
the purchase and distribution of the Securities by the
Underwriters.
(q) Legal Proceedings. Except
as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its subsidiaries is or may be a party
or to which any property of the Company or any of its subsidiaries
is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect; no
such investigations, actions, suits or proceedings are threatened
or, to the knowledge of the Company, contemplated by any
governmental or regulatory authority or threatened by others; and
(i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement or
the Prospectus that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus and
(ii) there are no contracts or other documents that are
required under the Securities Act to be filed as exhibits to the
Registration Statement and described in the Registration Statement
or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement,
the Time of Sale Information and the Prospectus.
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(r) Independent Accountants.
PricewaterhouseCoopers, LLP, whose report on the consolidated
financial statements of the Company and its subsidiaries is
included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus is an
independent registered public accounting firm with respect to the
Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(s) Investment Company Act.
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale
Information and the Prospectus, will not be an “investment
company” or an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, “
Investment Company Act ”).
(t) Title to Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses, except
where the failure to own or possess such rights could not be
reasonably expected, individually or in the aggregate, to have a
Material Adverse Effect; and the conduct of their respective
businesses will not conflict in any material respect with any such
rights of others, and the Company and its subsidiaries have not
received any notice of any claim of infringement or conflict with
any such rights of others that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(u) Licenses and Permits .
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess
or make the same would not, individually or in the aggregate, have
a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course.
(v) Compliance With Environmental
Laws . (i) The Company and its subsidiaries (x) are,
and at all prior times were, in compliance with any and all
applicable federal, state, local and foreign laws rules,
regulations, requirements, decisions and orders relating to the
protection of human health or safety, the
9
environment, natural resources, hazardous or
toxic substances or wastes, pollutants or contaminants
(collectively, “ Environmental Laws ”);
(y) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct
their respective businesses; and (z) have not received notice
of any actual or potential liability under or relating to any
Environmental Laws, including for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants and have no knowledge of any
event or condition that would reasonably be expected to result in
any such notice; (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or
its subsidiaries, except in the case of each of (i) and
(ii) above, for any such failure to comply with, or failure to
receive required permits, licenses or approvals, or cost or
liability as would not, individually or in the aggregate, have a
Material Adverse Effect and (iii) except as described in each
of the Time of Sale Information and the Prospectus, (x) there
are no proceedings that are pending, or that are known to be
contemplated, against the Company or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a
party, that individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect,
(y) the Company and its subsidiaries are not aware of any
issues regarding compliance with Environmental Laws, or liabilities
or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive
position of the Company and its subsidiaries, and (z) none of
the Company and its subsidiaries anticipates material capital
expenditures relating to any Environmental Laws.
(w) Disclosure Controls . The
Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(x) Accounting Controls . The
Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the
supervision of their respective principal executive and principal
financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting
controls suff
