Exhibit
1.1
Modine Manufacturing
Company
12,000,000 Shares of
Common Stock
Underwriting
Agreement
September 24,
2009
J.P. Morgan Securities
Inc.
383 Madison Avenue
New York, New York
10179
Ladies and
Gentlemen:
Modine Manufacturing
Company, a Wisconsin 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 representative (the “Representative”), an
aggregate of 12,000,000 shares of common stock, par value $0.625
per share, of the Company (the “Underwritten Shares”)
and, at the option of the Underwriters, up to an additional
1,800,000 shares of common stock of the Company (the “Option
Shares”). The Underwritten Shares and the Option Shares
are herein referred to as the “Shares”. The
shares of common stock of the Company to be outstanding after
giving effect to the sale of the Shares are referred to herein as
the “Stock”.
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, 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 (File No. 333-161030),
including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became 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
effectiveness, 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 Shares.
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
Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information
set forth on Annex A, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated September 21,
2009 and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex A
hereto.
“Applicable
Time” means 6:00 P.M., New York City time, on September 24,
2009.
2.
Purchase of the
Shares by the Underwriters .
(a)
The Company agrees to
issue and sell the Underwritten Shares 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 number
of Underwritten Shares set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price per share (the “Purchase
Price”) of $6.7818.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the
Company the Option Shares at the Purchase Price less an amount per
share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on
the Option Shares.
If any Option Shares
are to be purchased, the number of Option Shares to be purchased by
each Underwriter shall be the number of Option Shares which bears
the same ratio to the aggregate number of Option Shares being
purchased as the number of Underwritten Shares set forth opposite
the name of such Underwriter in Schedule 1 hereto (or such number
increased as set forth in Section 10 hereof) bears to the aggregate
number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representative in its sole
discretion shall make.
The Underwriters may
exercise the option to purchase Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day
following the date of the Prospectus, by written notice from the
Representative to the Company. Such notice shall set forth
the aggregate number of Option Shares as to which the option is
being exercised and the date and time when the Option Shares are to
be delivered and paid for, which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier
than the Closing Date or later than the tenth full business day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b)
The Company understands
that the Underwriters intend to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the
judgment of the Representative is advisable, and initially to offer
the Shares on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and
sell Shares to or through any affiliate of an
Underwriter.
(c)
Payment for the Shares
shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representative in the
case of the Underwritten Shares, at the offices of Mayer Brown LLP
at 10:00 A.M., New York City time, on September 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
2
Representative and the
Company may agree upon in writing or, in the case of the Option
Shares, on the date and at the time and place specified by the
Representative in the written notice of the Underwriters’
election to purchase such Option Shares. The time and date of
such payment for the Underwritten Shares is referred to herein as
the “Closing Date,” and the time and date for such
payment for the Option Shares, if other than the Closing Date, is
herein referred to as the “Additional Closing
Date.”
Payment for the Shares
to be purchased on the Closing Date or the Additional Closing Date,
as the case may be, shall be made against delivery to the
Representative for the respective accounts of the several
Underwriters of the Shares to be purchased on such date or the
Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through
the facilities of The Depository Trust Company (“DTC”)
unless the Representative shall otherwise instruct. The
certificates for the Shares will be made available for inspection
and packaging by the Representative at the office of DTC or its
designated custodian not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d)
The Company
acknowledges and agrees that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company with respect to the offering of Shares 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. Additionally,
neither the Representative 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.
3.
Representations and
Warranties of the Company . The Company represents and
warrants to each Underwriter that:
(a)
Preliminary
Prospectus. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied
in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained
any untrue statement of a material fact or omitted 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 reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
any Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(b)
Pricing Disclosure
Package .
The Pricing Disclosure Package as of the Applicable Time did
not, and as of the Closing Date and as of the Additional Closing
Date, as the case may be, 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 reliance upon and in
conformity
3
with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
such Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(c)
Issuer Free Writing
Prospectus. Other than the Registration
Statement, the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, used,
authorized, approved or referred to and will not prepare, 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 Shares (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clause (i) 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 or (ii) the documents listed on
Annex B hereto, each electronic road show and any other written
communications approved in writing in advance by the
Representative. 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 Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and as of the Closing Date and as of
the Additional Closing Date, as the case may be, 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 or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly
for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d)
Registration
Statement and Prospectus. The Registration Statement has
been declared effective by the Commission. 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 of the Shares has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration
Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment
complied and will comply in all material respects with the
Securities 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 and as of the Additional Closing Date, as the case may
be, the Prospectus 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 reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
4
(e)
Incorporated
Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed with the
Commission 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 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 Pricing Disclosure
Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f)
Financial
Statements. The financial statements
(including the related notes thereto) of the Company and its
consolidated subsidiaries included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package 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 consolidated 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 in the United States applied on a consistent basis
throughout the periods covered thereby, and any 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
Pricing Disclosure Package and the Prospectus has been derived from
the accounting records of the Company and its consolidated
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 in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any change in the capital stock
(other than the issuance of shares of Common Stock upon exercise of
stock options and warrants described as outstanding in, and the
grant of options and awards under existing equity incentive plans
described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus), short-term debt or long-term debt of
the Company or any of its subsidiaries (other than (i) borrowings
and repayments of debt under (A) revolving credit agreements to
which the Company and/or its subsidiaries are party and (B)
intercompany credit arrangements between or among the Company and
its subsidiaries and (ii) immaterial borrowings and repayments of
debt in the ordinary course of business), 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, shareholders’ equity, 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 (whether
or not in the ordinary course of business) 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
loss or interference with its business that is material to the
Company and its subsidiaries taken as a whole and that is either
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
5
otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(h)
Organization and
Good Standing. The Company and each of its
subsidiaries 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 or in good standing or have such power or
authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management,
financial position, shareholders’ equity, 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 this Agreement (a “Material Adverse Effect”).
The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21 to the Company’s Annual
Report on Form 10-K for the fiscal year ended March 31,
2009.
(i)
Capitalization.
The Company has
an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Capitalization”; all the outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are
not subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Pricing Disclosure
Package and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such
subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and all the outstanding shares of
capital stock or other equity interests of each subsidiary owned,
directly or indirectly, by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except,
in the case of any foreign subsidiary, for directors’
qualifying shares and except as otherwise described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus), and, except as otherwise described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, are
owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party.
(j)
Stock Options.
With
respect to the stock options (the “Stock Options”)
granted pursuant to the stock-based compensation plans of the
Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the Code
so qualifies, (ii) each grant of a Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was
by its terms to be effective (the “Grant Date”) by all
necessary corporate action, including, as applicable, approval by
the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required shareholder approval
by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was made in
accordance with the terms of the Company Stock Plans, the Exchange
Act and all other applicable laws and regulatory rules or
requirements, including
6
the rules of the New
York Stock Exchange and any other exchange on which Company
securities are traded, and (iv) each such grant was properly
accounted for in accordance with generally accepted accounting
principles (“GAAP”) in the financial statements
(including the related notes) of the Company and disclosed in the
Company's filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the
Company or its subsidiaries or their results of operations or
prospects.
(k)
Due
Authorization. The Company has full right,
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; and all action required to be
taken for the due and proper authorization, execution and delivery
by it of this Agreement and the consummation by it of the
transactions contemplated hereby has been duly and validly
taken.
(l)
Underwriting
Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(m)
The Shares.
The
Shares to be issued and sold by the Company hereunder have been
duly authorized and, when issued and delivered and paid for as
provided herein, will be duly and validly issued, will be fully
paid and nonassessable and will conform to the descriptions thereof
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus; and the issuance of the Shares is not subject to
any preemptive or similar rights.
(n)
Descriptions of the
Underwriting Agreement. The Underwriting Agreement
conforms in all material respects to the description thereof
contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(o)
No Violation or
Default. Neither the Company nor any
of its subsidiaries is (i) in violation of its Amended and
Restated Articles of Incorporation, as amended, or Bylaws 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.
(p)
No Conflicts.
The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated hereby 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
7
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.
(q)
No Consents
Required. No consent, approval,
authorization, order, license, 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 this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated
hereby, except for the registration of the sale of the Shares under
the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required by
the Financial Industry Regulatory Authority, Inc.
(“FINRA”), the New York Stock Exchange and under
applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriters.
(r)
Legal
Proceedings. Except as described in the
Registration Statement, the Pricing Disclosure Package 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; to the
knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened or 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, the Pricing Disclosure
Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and (ii) there are no statutes, regulations or contracts
or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(s)
Independent
Accountants . PricewaterhouseCoopers LLP,
who have certified certain financial statements of the Company and
its subsidiaries, 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.
(t)
Title to Real and
Personal Property . The Company and its
subsidiaries have good and marketable title in fee simple (in the
case of real property) to, or have valid and marketable rights to
lease or otherwise use, all items of real and personal property and
assets that are material to the respective businesses of the
Company and its subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries or (ii) could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(u)
Title to
Intellectual Property . The Company and its
subsidiaries own or possess adequate rights to use all material
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
8
information, systems or
procedures) necessary for the conduct of their respective
businesses as currently conducted and as proposed to be conducted,
and the conduct of their respective businesses will not conflict in
any material respect with any such rights of others. The Company
and its subsidiaries have not received any notice of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and
know-how, which could reasonably be expected to result in a
Material Adverse Effect.
(v)
No Undisclosed
Relationships . No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing
Disclosure Package.
(w)
Investment Company
Act .
The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, will not be required to register as 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, the “Investment Company
Act”).
(x)
Taxes.
The Company and
its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed
through the date hereof, except for any taxes that are not yet due
or are being contested in good faith and by appropriate proceedings
or where the failure to make such filings or pay such taxes would
not have a Material Adverse Effect; and except as otherwise
disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there is no material tax deficiency
that has been, or could reasonably be expected to be, asserted
against the Company or any of its subsidiaries or any of their
respective properties or assets for which the Company has not made
appropriate provisions in the financial statements included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus as required by
GAAP.
(y)
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 Pricing Disclosure Package 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 Pricing
Disclosure Package 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.
(z)
No Labor
Disputes. No labor disturbance by or
dispute with employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is contemplated or
threatened, and the Company is not aware of any existing or
imminent labor disturbance by, or dispute with, the employees of
any of its or its subsidiaries’ principal suppliers,
contractors or customers, except as would not have a Material
Adverse Effect.
9
(aa)
Compliance with and
Liability under Environmental Laws. (i) The Company and its
subsidiaries (a) are, and at all prior times were, in compliance
with any and all applicable federal, state, local and foreign laws,
rules, regulations, requirements, decisions, judgments, decrees,
orders and the common law relating to pollution or the protection
of the environment, natural resources or human health or safety,
including those relating to the generation, storage, treatment,
use, handling, transportation, Release or threat of Release of
Hazardous Materials (collectively, “Environmental
Laws”), (b) 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, (c) have not received notice
of any actual or potential liability under or relating to, or
actual or potential violation of, any Environmental Laws, including
for the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event
or condition that would reasonably be expected to result in any
such notice, (d) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action
pursuant to any Environmental Law at any location, and (e) are not
a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and (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 matter, as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (a) 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, other than such proceedings regarding which
it is reasonably believed no monetary sanctions of $100,000 or more
will be imposed, (b) the Company and its subsidiaries are not aware
of any facts or issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws,
including the Release or threat of Release of Hazardous Materials,
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 (c) none of the Company and its
subsidiaries anticipates material capital expenditures relating to
any Environmental Laws.
(bb)
Hazardous
Materials .
There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous
Materials by, relating to or caused by the Company or any of its
subsidiaries (or, to the knowledge of the Company and its
subsidiaries, any other entity (including any predecessor) for
whose acts or omissions the Company or any of its subsidiaries is
or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or
leased by the Company or any of its subsidiaries, or at, on, under
or from any other property or facility, in violation of any
Environmental Laws or in a manner or amount or to a location that
could reasonably be expected to result in any liability under any
Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring
radioactive materials, brine, and drilling mud, regulated or which
can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or
migrating in, into or through the environment, or in, into from or
through any building or structure.
10
(cc)
Compliance with
ERISA. (i) Each employee benefit
plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), for
which the Company or any member of its “Controlled
Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended (the
“Code”)) would have any liability (each, a
“Plan”) has been maintained in compliance with its
terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Code, except for noncompliance that could not reasonably be
expected to result in material liability to the Company or its
subsidiaries; (ii) no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions effected
pursuant to a statutory or administrative exemption that could
reasonably be expected to result in a material liability to the
Company or its subsidiaries; (iii) for each Plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of
ERISA, the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as applicable, has been satisfied (without
taking into account any waiver thereof or extension of any
amortization period) and is reasonably expected to be satisfied in
the future (without taking into account any waiver thereof or
extension of any amortization period); (iv) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur that either has
resulted, or could reasonably be expected to result, in material
liability to the Company or its subsidiaries; (v) neither the
Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC, in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(a)(3) of ERISA); and (vi) there is no pending audit
or investigation by the Internal Revenue Service, the U.S.
Department of Labor, the Pension Benefit Guaranty Corporation or
any other governmental agency or any foreign regulatory agency with
respect to any Plan that could reasonably be expected to result in
material liability to the Company or its subsidiaries. None
of the following events has occurred or is reasonably likely to
occur: (x) a material increase in the aggregate amount of
contributions required to be made to all Plans by the Company or
its subsidiaries in the current fiscal year of the Company and its
subsidiaries compared to the amount of such contributions made in
the Company and its subsidiaries’ most recently completed
fiscal year; or (y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such
obligations in the Company and its subsidiaries’ most
recently completed fiscal year.
(dd)
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 complies with the
requirements of the Exchange Act and that has been 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.
(ee)
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
11
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
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Based on the Company’s most recent evaluation of its
internal controls over financial reporting pursuant to Rule
13a-15(c) of the Exchange Act, there are no material weaknesses in
the Company’s internal controls. The Company’s
auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of
internal controls over f
