Exhibit 1.1
Louisiana-Pacific
Corporation
18,000,000 shares of Common
Stock, $1 par value
Underwriting
Agreement
September 23, 2009
Goldman, Sachs &
Co.
As the representative of the several
Underwriters
named in Schedule I
hereto,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Louisiana-Pacific Corporation, a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of 18,000,000 shares (the
“Firm Shares”) and, at the election of the
Underwriters, up to 2,700,000 additional shares (the
“Optional Shares”) of common stock, $1 par value
(“Stock”), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof being collectively called the
“Shares”).
1. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form
S-3 (File No. 333-161050) (as amended by pre-effective
amendment no. 1 thereto, the “Initial Registration
Statement”) in respect of the Shares has been filed with the
Securities and Exchange Commission (the “Commission”);
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to Goldman,
Sachs & Co., as the representative of the Underwriters
(the “Representatives”), excluding exhibits to the
Initial Registration Statement, but including all documents
incorporated by reference in the prospectus included therein, have
been declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Securities Act”), which became effective
upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference
therein has heretofore been filed, or transmitted
for filing, with the Commission
(other than reports on Form 8-K and prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or any part thereof or the Rule
462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (the base prospectus filed as part of the Initial
Registration Statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement relating to the Shares, is hereinafter called the
“Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including any prospectus
supplement relating to the Shares that is filed with the Commission
and deemed by virtue of Rule 430B under the Securities Act to be
part of the Initial Registration Statement, each as amended at the
time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(d) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Shares filed with
Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, 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, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares is hereinafter called
an “Issuer Free Writing Prospectus”);
(b) At the earliest time after the
filing of the Initial Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) under the Securities Act) of the
Shares, the Company was not an “ineligible issuer” as
defined in Rule 405 under the Securities Act;
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(c) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder, and did not
contain an 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, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(d) For the purposes of this
Agreement, the “Applicable Time” is 5:00 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as
supplemented by those Issuer Free Writing Prospectuses and other
documents and information listed on Schedule III(b) hereto, taken
together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include 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; and each Issuer Free Writing Prospectus listed on
Schedule III(a) and the materials and information listed on
Schedule III(b) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and not superseded or modified, and each such Issuer
Free Writing Prospectus, as supplemented by and taken together with
the Pricing Disclosure Package as of the Applicable Time, did not
include 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; provided, however, that this representation
and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective
date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an 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; provided,
however, that this representation and warranty shall not apply to
(i) that part of the Registration Statement that constitutes
the Statement of Eligibility and
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Qualification (Form T-1) of the
trustee under the Trust Indenture Act of 1940, as amended, or
(ii) any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for
use therein;
(f) The documents incorporated by
reference in the Pricing Prospectus and Prospectus at the time they
were or hereafter are filed with the Commission complied or will
comply in all material respects to the requirements of the Exchange
Act;
(g) The Stock will conform in all
material respects to the respective statements relating thereto
contained in the Pricing Prospectus and Prospectus;
(h) Except as otherwise disclosed in
the Pricing Prospectus and Prospectus, subsequent to the respective
dates as of which information is given in the Pricing Prospectus
and Prospectus: (i) there has been no material adverse change,
or any development that would reasonably be expected to result in a
material adverse change in the condition, financial or otherwise,
or in the earnings, business, results of operations, properties 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) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and
(iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital
stock;
(i) Deloitte & Touche LLP,
which expressed its opinion with respect to the financial
statements (which term as used in this Agreement includes the
related notes thereto) filed with the Commission and included in
the Pricing Prospectus, are independent public or certified public
accountants within the meaning of Regulation S-X under the
Securities Act and the Exchange Act, and any non-audit services
provided by Deloitte & Touche LLP to the Company or any of
its subsidiaries have been approved by the Audit Committee of the
Board of Directors of the Company to the extent required by law and
rules and regulations of the Commission;
(j) The financial statements,
together with the related schedules, included in the Pricing
Prospectus present fairly, in all material respects, the
consolidated financial position of the entities to which they
relate as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto;
(k) Each of the Company and its
subsidiaries has been duly incorporated or formed, as applicable,
and is validly existing as a corporation, limited partnership
or
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limited liability company, as
applicable, or in good standing under the laws of the jurisdiction
of incorporation or formation, as applicable, and has corporate,
partnership or limited liability company, as applicable, authority
to own, lease and operate its properties and to conduct its
business as described in the Pricing Prospectus and, in the case of
the Company, to enter into and perform its obligations under this
Agreement. Each of the Company and each subsidiary is duly
qualified as a foreign corporation, partnership or limited
liability company, as applicable, to transact business and, if
applicable, is in good standing or equivalent status 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 where the failure to so qualify or be in good
standing would not, individually or in the aggregate, result in a
Material Adverse Change. All of the issued and outstanding capital
stock of each subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim
other than liens permitted by the Company’s debt obligations.
The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the
subsidiaries listed on Schedule II hereto;
(l) At September 21, 2009, on a
consolidated basis, after giving pro forma effect to the issuance
and sale of the Shares pursuant hereto and the use of proceeds
thereof as described in the Pricing Prospectus and Prospectus, the
Company would have an authorized capitalization as set forth in the
Prospectus under the caption “Description of Capital
Stock” and outstanding capitalization as set forth in the
Pricing Prospectus under the caption “Prospectus Supplement
Summary—The Offering” (other than for subsequent
issuances, repurchases or forfeitures of capital stock, if any,
pursuant to employee benefit plans described in the Pricing
Prospectus and Prospectus or upon exercise of outstanding options
described in the Pricing Prospectus and Prospectus);
(m) Neither the Company nor any of
its subsidiaries is in violation of its charter or bylaws or
limited partnership or limited liability company agreement or, on
the date hereof (and on the Closing Date), is in default (or, with
the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which any of them is bound (each, an “Existing
Agreement”), except for such Defaults as would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change. The Company’s execution,
delivery and performance of this Agreement, and the issuance and
delivery of the Shares, and consummation of the transactions
contemplated hereby and by the Pricing Prospectus and Prospectus
(i) have been duly authorized by all necessary corporate
action and will not result in any violation of the provisions of
the charter or bylaws of the Company; (ii) on the date hereof
(and on the Closing Date) will not conflict with or constitute a
breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets
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of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party
to, any Existing Agreement, except for such conflicts, breaches,
Defaults, liens, charges or encumbrances as would not, individually
or in the aggregate, reasonably be expected to result in a Material
Adverse Change; and (iii) will not result in any violation of
(x) any law, administrative regulation or administrative or
court decree (other than any state securities or blue sky laws or
regulations) or (y) to the knowledge of the Company, any state
securities or blue sky laws or regulations applicable to the
Company or any subsidiary. 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 the issuance and delivery of the Shares, or
consummation of the transactions contemplated hereby and by the
Pricing Prospectus and Prospectus, except such filings as have been
made or obtained by the Company and as may be required by
applicable securities laws of the United States and the several
states of the United States as described in this
Agreement;
(n) Other than as set forth in the
Pricing Prospectus and the Prospectus, there are no legal or
governmental actions, suits or proceedings pending, or to the best
of the Company’s knowledge, threatened against or affecting
the Company or any of its subsidiaries or which has as the subject
thereof any property owned or leased by the Company or any of its
subsidiaries that would reasonably be expected to result in a
Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. Other than as set
forth in the Pricing Prospectus and the Prospectus, no material
labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the best of the Company’s
knowledge, is threatened;
(o) The Company and its subsidiaries
own or possess sufficient trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar
rights (collectively, “Intellectual Property Rights”)
reasonably necessary to conduct their businesses as now conducted
except where the failure to own or possess such Intellectual
Property Rights would not reasonably be expected to result in a
Material Adverse Change; and the expected expiration of any of such
Intellectual Property Rights would not reasonably be expected to
result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or
conflict with asserted Intellectual Property Rights of others,
which infringement or conflict would reasonably be expected to
result in a Material Adverse Change;
(p) The Company and each subsidiary
possess such valid and current certificates, authorizations or
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to own, lease and operate
its properties and to conduct their respective businesses as
described in the Pricing Prospectus and the Prospectus, except
where the failure to possess the same would not reasonably be
expected to result in a Material Adverse Change, and neither
the
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Company nor any subsidiary has
received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse
Change;
(q) The Company and its subsidiaries
own good and marketable fee simple title to all of their material
owned real property, and valid and marketable leasehold interests
in all of their material leased real property. The Company and each
of its subsidiaries also have good and marketable title to, or
valid leasehold interests in, all of their personal property and
assets. At the Closing Date, except as described in the Pricing
Prospectus and Prospectus, no portion of the material real property
of the Company and each of its subsidiaries will have suffered any
material damage by fire or other casualty loss that has not
heretofore been repaired and restored in all material respects to
its original condition. At the Closing Date, all permits, except
those which would not reasonably be expected to result in a
Material Adverse Change, required to have been issued or
appropriate to enable the real property to be lawfully occupied and
used for all of the purposes for which it is currently occupied and
used will have been lawfully issued and are in full force and
effect. The assets and properties owned, leased or otherwise used
by the Company and its subsidiaries are in good repair, working
order and condition (reasonable wear and tear excepted), except as
would not reasonably be expected to result in a Material Adverse
Change.
(r) The Company and its consolidated
subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns and have paid all material 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 taxes, assessments, fines or penalties being
contested in a good faith. The Company has made adequate charges,
accruals and reserves in accordance with generally accepted
accounting principles in the United States in the applicable
financial statements referred to herein in respect of all federal,
state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its consolidated
subsidiaries has not been finally determined;
(s) The Company has been advised of
the rules and requirements under the Investment Company Act of
1940, as amended (the “Investment Company Act,” which
term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder). The Company is not, and after
receipt of payment for the Shares will not be, an “investment
company” within the meaning of the Investment Company Act and
will conduct its business in a manner so that it will not become
subject to the Investment Company Act;
(t) The Company and its subsidiaries
are insured by recognized institutions with policies in such
amounts and covering such risks as are customary for their
businesses. 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 as may be 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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(u) None of the Company or any of
its subsidiaries has taken or will 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
Shares;
(v) The Company and its subsidiaries
and their respective officers and directors are in compliance, in
all material respects, with the applicable provisions of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act,”
which term, as used herein, includes the rules and regulations of
the Commission promulgated thereunder);
(w) The Company and its subsidiaries
maintain a system of accounting controls that is in compliance, in
all material respects, with the Sarbanes-Oxley Act and is
sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles as applied in the United States 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 accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences;
(x) The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rules 13a-15 and 15d-14 under the Exchange Act);
such disclosure controls and procedures are designed to ensure that
material information required to be disclosed by the Company in the
reports that it files under the Exchange Act is recorded,
processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, and such
disclosure controls and procedures are reasonably effective to
perform the functions for which they were established subject to
the limitations of any such control system; the Company’s
auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (i) any significant deficiencies
or material weaknesses in the design or operation of internal
controls which would adversely affect the Company’s ability
to record, process, summarize, and report financial data; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls; and since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus, there have been no significant changes in
internal controls or in other factors that would reasonably be
expected to materially affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses;
(y) Except as disclosed or as would
not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change: (i) neither the Company
nor any of its subsidiaries is in violation of any applicable
federal, state, local or foreign law or regulation relating to
pollution or protection of human health or the
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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 Environmental Concern
(collectively, “Environmental Laws”), which violation
includes, without limitation, 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; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no
investigation pending with respect to which the Company or any of
its subsidiaries has received written notice, and no unresolved
written notice by any person or entity alleging potential liability
of the Company or any of its subsidiaries 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 contractually or by
operation of law; and (iii) to the best of the Company’s
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal
of any Material of Environmental Concern, that would result in a
violation of any 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;
(z) 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 be expected
to result in a Material Adverse Change;
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(aa) The Company and its
subsidiaries and any “employee benefit plan” (as
defined under the Employee Retirement Income Security Act of 1974
(as amended, “ERISA,” which term, as used herein,
includes the regulations and published interpretations thereunder)
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 Section 414 of the
Internal Revenue Code of 1986 (as amended, the “Code,”
which term, as used herein, includes the regulations and published
interpretations thereunder) 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” or (ii) Sections 412,
4971, 4975 or 4980B of the Code. 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 of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification;
(bb) Except as would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change, (i) there is (A) no unfair
labor practice complaint pending or, to the best of the
Company’s knowledge, threatened against the Company or any of
its subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements pending, or to the best of the
Company’s knowledge, threatened, against the Company or any
of its subsidiaries, (B) no strike, labor dispute, slowdown or
stoppage pending or, to the best of the Company’s knowledge,
threatened against the Company or any of its subsidiaries and
(C) no union representation question existing with respect to
the employees of the Company or any of its subsidiaries and, to the
best of the Company’s knowledge, no union organizing
activities taking place and (ii) there has been no violation
of any federal, state or local law relating to discrimination in
hiring, promotion or pay of employees or of any applicable wage or
hour laws;
(cc) 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, member, stockholder, customer or supplier of the Company
or any affiliate of the
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Company, on the other hand, which is
required by the Securities Act to be disclosed in the Pricing
Prospectus and the Prospectus and which is not disclosed therein.
There are no outstanding loans, advances (except advances for
business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company or any affiliate of the Company to
or for the benefit of any of the officers or directors of the
Company or any affiliate of the Company or any of their respective
family members;
(dd) Neither the Company or any of
its subsidiaries nor, to the best of the Company’s knowledge,
any employee or agent of the Company or any subsidiary, has made
any contribution or other payment to any official of, or candidate
for, any federal, state or foreign office in violation of any law
or of the character necessary to be disclosed in the Pricing
Prospectus or the Prospectus in order to make the statements
therein not misleading;
(ee) 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 knowledge of the
Company, threatened; and
(ff) 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 of the
Securities, 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.
Any certificate signed by an officer
of the Company or any subsidiary and delivered to the Underwriters
or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company or such subsidiary to
each Underwriter as to the matters set forth therein.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $6.4125, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in clause (a) of
this
11
sentence, that portion of the number of
O
