Exhibit 1
Meritor, Inc.
UNDERWRITING AGREEMENT
dated June 8, 2015
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Underwriting Agreement
June 8, 2015
|
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
As Representative of the several
Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Introductory.
Meritor, Inc., an Indiana
corporation (f/k/a Arvin Meritor, Inc., the “Company”), proposes to issue and sell to the several underwriters named in
Schedule A hereto (the “Underwriters”), for whom you (the “Representative”) is acting as representative, $225,000,000
aggregate principal amount of its 6-1/4% Notes due 2024 (the “Notes”). The Notes will be guaranteed (collectively, the “Guarantees”) by each of the subsidiary guarantors named in Schedule B hereto (the “Guarantors”). The Notes
and the Guarantees are collectively referred to herein as the “Securities.” The Securities will be issued pursuant to an indenture dated as of
April 1, 1998 (the “Base
Indenture”), among the Company
and The Bank of New York Mellon Trust Company, N.A. (as successor to BNY Midwest
Trust Company as successor to The Chase Manhattan Bank), as trustee (the
“Trustee”), as supplemented as of July 7, 2000, July 6,
2004, June 23, 2006, March 3, 2010, May 31, 2013 and February 13, 2014
(collectively the “Supplemental
Indentures” and together with the
Base Indenture, the “Indenture”). The Company
previously issued $225,000,000 in aggregate principal amount of its 6-1/4% Notes
due 2024 under the Indenture (the “Initial Securities”). The
Securities constitute a further issuance of notes under the Indenture, will have
terms identical to the Initial Securities (other than their issue date and issue
price) and will form a single series and be fully fungible with the Initial
Securities. The use of the neuter in this Underwriting Agreement (the
“Agreement”) shall include the feminine and masculine
wherever appropriate.
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.
333-200858), including a prospectus (as amended at the time it became effective,
the “Base
Prospectus”), relating to
securities to be issued from time to time by the Company. The Company has also
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement specifically
relating to the Securities pursuant to Rule 424 under the Securities Act (the
“Prospectus
Supplement”). The term
“Registration
Statement” means the 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”). The term “Preliminary Prospectus” means the preliminary prospectus supplement
specifically relating to the Securities filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act together with the Base
Prospectus. The term “Prospectus” means the Base
Prospectus as supplemented by, and together with, the final Prospectus
Supplement specifically relating to the Securities in the form to be filed by
the Company with the Commission pursuant to Rule 424(b) under the Securities Act
and 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, the
Base 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 under the Securities Act, as of the effective date of the
Registration Statement or the date of the Base Prospectus, such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference herein to
“amend,” “amendment” or “supplement” as used with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed by the Company 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.
At or prior to the
Applicable Time (as defined below), the Company had prepared the following
information (the “Pricing
Disclosure Package”): the
Preliminary Prospectus dated June 8, 2015 and each “free-writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act) listed on Schedule C hereto.
“Applicable Time” means 4:09 P.M., New York City time, on June 8,
2015, the time at or immediately prior to which sales of the Securities are
first made.
2. Purchase, Sale, Delivery and Payment; Representations and Warranties
and Covenants of the Underwriters.
(a) The
Company agrees to issue and sell to the several Underwriters the Notes upon the
terms herein set forth and, on the basis of the representations, warranties and
agreements and upon the terms but subject to the conditions herein set forth,
each Underwriter agrees, severally and not jointly, to purchase from the Company
the respective aggregate principal amount of the Notes set forth opposite such
Underwriter's names on Schedule
A. The purchase price per Note to
be paid by the several Underwriters to the Company shall be equal to 98.375% of
the principal amount thereof, plus accrued interest from February 15, 2015 to
the Closing Date (as defined below). The Company will not be obligated to
deliver any of the Notes except upon payment for all the Notes to be purchased
as provided hereunder.
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(b) Delivery of certificates for the Notes to be purchased by the
Underwriters and payment therefor shall be made at the offices of Davis Polk
& Wardwell LLP, 450 Lexington
Avenue, New York, NY 10017
(or such other place as may be
agreed to by the Company and the Representative in writing) at 9:30 a.m. New
York time, on June 11, 2015, or at such other time on the same or such other
date, not later than the seventh business day thereafter, as the Representative
and the Company shall agree upon in writing (the time and date of such delivery
and payment are called the “Closing Date”). Delivery
of the Notes shall be made through the facilities of The Depository Trust
Company (“DTC”) unless the Representative shall otherwise
instruct. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the
Underwriters.
(c) Public Offering of the Securities. The Company and the Guarantors understand 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 Representative is advisable, and
initially to offer the Securities on the terms set forth in the Pricing
Disclosure Package. The Company and the Guarantors acknowledge and agree that
the Underwriters may offer and sell the Securities to or through any affiliate
of an Underwriter.
(d) Payment for the Securities. Payment for the Securities shall be made on the Closing Date by wire
transfer of immediately available funds to an account specified to the
Representative by the Company. It is understood that the Representative have
been authorized, for their own account and the accounts of the several
Underwriters, to accept delivery of and receipt for, and make payment of the
purchase price for, the Securities. Merrill Lynch, Pierce, Fenner & Smith
Incorporated, individually and not as the Representative of the Underwriters,
may (but shall not be obligated to) make payment for any Securities to be
purchased by any Underwriter whose funds shall not have been received by the
Representative by the Closing Date for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
(e) The
Company and the Guarantors acknowledge and agree that each Underwriter is acting
solely in the capacity of an arm’s length contractual counterparty to the
Company and the Guarantors 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, the Guarantors or any other person. Additionally, neither the
Representative nor any other Underwriter are advising the Company, the
Guarantors or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Guarantors shall
consult with their own advisors concerning such matters and shall be responsible
for making their own independent investigation and appraisal of the transactions
contemplated hereby, and neither the Representative nor any other Underwriter
shall have any responsibility or liability to the Company or the Guarantors with
respect thereto. Any review by the Representative or any Underwriter of the
Company, the Guarantors, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the
Representative or such Underwriter and shall not be on behalf of the Company or
the Guarantors or any other person.
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3. Representations and Warranties. The Company and each Guarantor, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters as of the date hereof 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 applicable requirements of 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 (other than
Rule 430 Information) 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 and each Guarantor make no
representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with Underwriter Information (as defined in
Section 7 hereof).
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and
as of 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
and each Guarantor make no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with Underwriter
Information.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the
Prospectus, the Company and each Guarantor (including their respective agents
and representatives, other than the Underwriters in their capacity as such) have
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 Securities (each such communication by the
Company, any Guarantor or their respective 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, (ii) the documents listed on Schedule C hereto and (iii) 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 under the Securities Act) filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with (i) the Preliminary
Prospectus as of its date did not, (ii) the Pricing Disclosure Package as of the
Applicable Time did not and (iii) the Pricing Disclosure Package as of 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 and each Guarantor make no
representation and warranty with respect to any statements or omissions made in
any such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance
upon and in conformity with Underwriter Information.
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(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 any Guarantor or related to the offering of the Securities has been initiated
or, to the knowledge of the Company, 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 applicable requirements of 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, 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
and each Guarantor make no representation and warranty herein with respect to
(i) that part of the Registration Statement that constitutes any Statement of
Eligibility and qualification (Form T-1) under the Trust Indenture Act of 1939
or (ii) any statements or omissions made in the Registration Statement or the
Prospectus or any amendment or supplement to any thereof made in reliance upon
and in conformity with Underwriter Information.
(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement,
the Prospectus and the Pricing Disclosure Package, when they became effective or
were filed with the Commission, as the case may be, conformed in all material
respects to the applicable requirements of the Securities Act or the Exchange
Act, as applicable, and none of such documents, as of the date they became
effective or were filed with the Commission, as the case may be, 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 become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the applicable requirements of the Securities Act or the Exchange
Act, as applicable, and will not, as of the date such documents become effective
or are filed with the Commission, as the case may be, 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 included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, together with the
related notes thereto, present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and changes in
shareowners’ equity of the Company and its subsidiaries for the periods
specified in accordance with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis during the
periods involved, subject, in the case of interim financial statements, to
normal year-end adjustments, and comply in all material respects with the
applicable requirements of the Securities Act and Exchange Act, as applicable.
The summary and selected financial data included in the Prospectus fairly
present the information shown therein as of the respective dates and for the
respective periods specified and are derived from and consistent with the
consolidated financial statements included in or incorporated by reference into
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
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(g) No
Material Adverse Change. Since
the date of the most recent financial statements included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole.
(h) Organization and Good Standing. The Company, each Guarantor and each of its subsidiaries set forth on
Schedule D (the “Significant Subsidiaries”)
have been duly organized and are validly existing and in good standing (to the
extent such concept is relevant in any particular jurisdiction) under the laws
of their respective jurisdictions of incorporation or organization, have full
corporate, limited liability company, partnership, limited partnership,
statutory trust or other organization, as the case may be, power and authority
necessary to own, lease or hold their respective properties and conduct their
respective businesses as such businesses are described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, are duly qualified
to do business and are in good standing (to the extent such concept is relevant
in any particular jurisdiction) in each jurisdiction where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified, be in good standing or have such power or authority would not,
individually or in the aggregate, either (i) reasonably be expected to have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole,
(ii) prevent or materially interfere with the performance by the Company and
each Guarantor of its obligations under this Agreement or (iii) result in the
delisting of the common stock of the Company from the New York Stock Exchange
(the “NYSE”) (the occurrence of any such effect described in
the foregoing clauses (i), (ii) and (iii) being herein referred to as a
“Material Adverse
Effect”). The Significant
Subsidiaries are the only “significant subsidiaries” (within the meaning of Rule
1-02 of Regulation S-X under the Exchange Act) of the Company.
(i) Capitalization. As of the
date hereof, the Company has an authorized capitalization as set forth in the
section of the Pricing Disclosure Package and the Prospectus entitled
“Capitalization”, and, as of the time of purchase, the Company shall have an
authorized capitalization as set forth in the section of the Pricing Disclosure
Package and the Prospectus entitled “Capitalization”; all of the issued and
outstanding shares of capital stock, including the common stock, of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable and were not issued in violation of and are not subject to any
pre-emptive right, resale right, right of first refusal or similar right and, to
the knowledge of the Company, have been issued in compliance with all applicable
securities laws; 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 in the Company, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of the Company, any such convertible or exchangeable securities or any
such rights, warrants or options; the terms of 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; except as described in the Pricing
Disclosure Package and the Prospectus, all the outstanding shares of capital
stock or other equity interests of each Guarantor and each Significant
Subsidiary 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 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 similar claim of any third party.
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(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 stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was duly
executed and delivered by each party thereto, (iii) each such grant was, in all
material respects, made in accordance with the terms of the Company Stock Plans,
the Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the NYSE and any other exchange on which
Company securities are traded, and (iv) each such grant was, in all material
respects, properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company and disclosed in the
Company's filings with the Commission in accordance with the Exchange Act and
all other applicable laws. The Company has not knowingly granted, and there is
no and 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 and
each Guarantor have full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, including, without
limitation, to issue, sell and deliver the Securities (as applicable); and all
action required to be taken by the Company and each Guarantor for the due and
proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transaction contemplated hereby has been duly and
validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the
Company and each Guarantor.
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(m) The
Securities. The Notes to be
purchased by the Underwriters from the Company hereunder have been duly
authorized by the Company for issuance and sale pursuant to this Agreement and
the Indenture and, at the Closing Date, will have been duly executed by the
Company and, when executed and delivered by the Company and duly authenticated
in the manner provided for in, and in accordance with the terms of, the
Indenture and delivered against payment by the Underwriters of the purchase
price therefor in accordance with the terms hereof, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws relating to or affecting creditors’ rights generally
or by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture. The Guarantees of the Notes have been duly authorized
by the respective Guarantors and, at the Closing Date, will have been duly
executed by each of the Guarantors and, when the Notes have been executed and
delivered by the Company and duly authenticated in the manner provided for in,
and in the accordance with the terms of, the Indenture and delivered against
payment by the Underwriters of the purchase price therefor, the Guarantees will
constitute valid and binding obligations of the respective Guarantors,
enforceable against the respective Guarantors in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws relating to or
affecting creditors’ rights generally or by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(n) The
Indenture. The Indenture has been
duly qualified under the Trust Indenture Act. The Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws relating to or affecting creditors’ rights generally or by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(o) Description of Documents.
The Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Disclosure Package and the Prospectus under the
captions “Description of the Notes” and “Description of Debt Securities.”
(p) No
Violation or Default. (A) None of
the Company nor any of the Significant Subsidiaries is in violation of its
charter or bylaws or similar organizational documents; and none of the Company
nor any of its subsidiaries is (B) in default under (nor has any event occurred
which, with notice, lapse of time or both, would result in any breach or
violation of, constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under)
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which it is a party or by which it or any of its properties is
subject, (C) in violation of any federal, state, local or foreign law,
regulation or rule, (D) in violation of any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NYSE), or (E)
in violation of any decree, judgment or order binding on it or any of its
properties, except in the case of clauses (B), (C), (D) and (E), for any breach,
violation, default or right that would not, individually or in the aggregate,
have a Material Adverse Effect.
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(q) No
Conflicts. The execution,
delivery and performance by the Company and each Guarantor of this Agreement,
the issuance and sale of the Securities and the consummation by the Company and
each Guarantor of the transactions contemplated hereby will not result (A) in
any violation of the charter or bylaws or similar organizational documents of
the Company, any Guarantor or any of its Significant Subsidiaries or, to
the knowledge of the Company, any of its other subsidiaries, (B) in any breach
or violation of or constitute a default under (nor constitute any event which,
with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any of its subsidiaries pursuant to) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which any of
them or any of their respective properties is subject, (C) in any violation of
any federal, state, local or foreign law, regulation or rule, (D) in any
violation of any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE), or (E) in any violation of any decree, judgment or
order binding on the Company or any of its subsidiaries or any of their
respective properties, except in the case of clauses (B), (C), (D) and (E), for
any conflict, breach, violation, default, right, lien, charge or encumbrance
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(r) No
Consents Required. To the
knowledge of the Company, no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency having jurisdiction over the
Company or any Guarantor, or of or with any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the
NYSE) having jurisdiction over the Company or any Guarantor, or approval of the
stockholders of the Company, is required for the issuance and sale of the
Securities pursuant hereto or the consummation by the Company and each Guarantor
of the transactions as contemplated by this Agreement, other than as may be
required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under the securities or Blue Sky laws of the various jurisdictions
in which the Securities are being offered by the Underwriters.
(s) Legal Proceedings. Except
as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no actions, suits, claims, proceedings, or to the
Company’s knowledge, investigations pending, or, to the Company’s knowledge,
threatened or contemplated, against the Company or any of its subsidiaries at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NYSE), except any such action, suit,
investigation or proceeding which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(t) Independent Accountants.
Deloitte & Touche LLP 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.
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(u) Title to Real and Personal Property. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, or as would not,
individually or in the aggregate, have a Material Adverse Effect, the
Company and its subsidiaries have good title to all material property (real and
personal) described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus as being owned by any of them, free and clear of all
liens, claims, security interests or other encumbrances.
(v) 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 information, systems or procedures) necessary for
the conduct of their respective businesses as currently conducted and as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, except where the failure to own or possess such rights would not,
individually or in the aggregate, have a Material Adverse Effect, and, to the
knowledge of the Company, the conduct of their respective businesses as
presently conducted does not conflict with any such rights of others, except for
such conflicts as would not, individually or in the aggregate, have a Material
Adverse Effect. The Company and its subsidiaries have not since January 1, 2012
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.
(w) Investment Company Act.
The Company and each Guarantor are 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 Pricing Disclosure Package and the
Prospectus, will not be an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”).
(x) Taxes. All tax returns
required to be filed by the Company or any of its subsidiaries have been timely
filed, and all taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have
been timely paid, other than those being contested in good faith or for which
adequate reserves have been provided, except in each case, as the same would
not, individually or in the aggregate, have a Material Adverse Effect.
(y) Licenses and Permits. Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, each of the Company and its subsidiaries has all
necessary governmental licenses, authorizations, consents and approvals and has
made all necessary filings required under any applicable law, regulation or
rule, in order to conduct their respective businesses as currently conducted,
except where any failure to possess or make the same would not, individually or
in the aggregate, have a Material Adverse Effect; none of the Company or any of
its subsidiaries is in violation of, or in default under, or has received notice
of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval applicable to the Company or any of its
subsidiaries, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse Effect.
-10-
(z) No
Labor Disputes; Compliance with ERISA. Except in each case set forth in this section (z), as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, or as
would not, individually or in the aggregate, have a Material Adverse Effect, (i)
none of the Company or any of its subsidiaries is engaged in any unfair labor
practice; (ii) there is (A) no unfair labor practice complaint pending or, to
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
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of its subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of its
subsidiaries, (iii) to the Company’s knowledge, no union organizing activities
are currently taking place at any facility that is material to the Company
concerning the employees of the Company or any of its subsidiaries and (iv)
there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any violation of any provision of the Employee Retirement
Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder concerning the
Company or any of its subsidiaries or employees.
(aa) Compliance with and Liability under Environmental Laws; Hazardous
Materials. Except, in each case
set forth in this section (aa), as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, or as would not, individually or
in the aggregate, have a Material Adverse Effect, (i) the Company and each of
its subsidiaries and their respective properties, assets and operations are in
compliance with Environmental Laws (as defined below), (ii) there are no past or
present events, conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise to any costs
or liabilities to the Company or any of its subsidiaries under, or to interfere
with or prevent compliance by the Company or any of its subsidiaries with,
Environmental Laws, (iii) none of the Company or any of its subsidiaries (A) to
the knowledge of the Company, is the subject of any investigation, (B) has
received any notice or claim, (C) is a party to any pending or, to the Company’s
knowledge, threatened action, suit or proceeding, (D) is bound by any judgment,
decree or order or (E) has entered into any agreement, in each case relating to
any alleged violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law” means
any federal, state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to human health or safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials” means
any material (including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law).
-11-
(bb) Environmental Review. In
the ordinary course of their business, the Company, each Guarantor and each of
the Significant Subsidiaries conduct periodic reviews of the effect of the
Environmental Laws on their respective businesses, operations and properties, in
the course of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with the
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties).
(cc) Disclosure Controls. The
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures were
effective as of March 31, 2015, and, to the knowledge of the Company, are
effective as of the date hereof and will be effective as of the Closing Date, to
perform the functions for which they were established.
(dd) Accounting Controls. The
Company and each of its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance 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 GAAP 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. The
Company’s independent auditors and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant deficiencies and
material weaknesses, if any, in the design or operation of internal control over
financial reporting known to the Company which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report
financial data; and (ii) all fraud, if any, whether or not material, known to
the Company that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting; all material
weaknesses, if any, in internal controls known to the Company have been
identified to the Company’s independent auditors; except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, since
September 28, 2014, there has not been any change in the Company's internal
control over financial reporting that has materially affected, or is likely to
materially affect, the Company's internal control over financial reporting.
(ee) Insurance. Except as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, or as would not, individually or in the aggregate, have a Material
Adverse Effect, (i) the Company, each Guarantor and each of the Significant
Subsidiaries maintain insurance covering their respective properties,
operations, personnel and businesses as the Company reasonably deems adequate,
(ii) such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company,
each Guarantor and each of the Significant Subsidiaries and their respective
businesses, (iii) all such insurance is fully in force on the date hereof and
will be fully in force at the time of purchase, and (iv) none of the Company any
of the Guarantors nor any of the Significant
Subsidiaries has reason to believe that it will not be able to renew any such
insurance.
-12-
(ff) No
Unlawful Payments. 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 its
subsidiaries or other person acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977
(together with the rules and regulations promulgated thereunder, the
“FCPA”), the Bribery Act 2010 of the United Kingdom
(the “Bribery Act”) or, to the knowledge of the Company and in any
material respect, any other applicable anti-corruption or anti-bribery laws (the
“Other Payment
Laws”) or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment. The
Company, its subsidiaries and, to the knowledge of the Company, the Company’s
affiliates have conducted their businesses in compliance with the FCPA and the
Bribery Act and, in all material respects, the Other Payment Laws and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance with the
FCPA and the Bribery Act and, in all material respects, the Other Payment Laws.
(gg) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance 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 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.
(hh) Compliance with OFAC. None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), Her Majesty’s Treasury, the United Nations Security Council, the
European Union or other relevant sanctions authority (collectively,
“Sanctions”); and the Company will not, directly or
indirectly, use the proceeds of the offering of the Securities hereunder, 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 or business with any person, or in any country or territory, that,
at the time of such funding, is subject to any Sanctions. None of the Company,
any of its subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries
is located, organized or resident, as applicable, in a country or territory that
is the subject or the target of Sanctions, including, without limitation, Cuba,
Iran, North Korea, Crimea, Sudan and Syria.
-13-
(ii) No
Restrictions on Guarantors and Significant Subsidiaries. No Guarantor and Significant Subsidiary is
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such Guarantor’s or such
Significant Subsidiary’s capital stock or from repaying to the Company any loans
or advances to such Guarantor or such Significant Subsidiary from the Company,
except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(jj) No
Broker’s Fees. Except pursuant to
this Agreement, neither the Company nor any of its subsidiaries has incurred any
liability for any finder’s or broker’s fee or agent’s commission in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(kk) No
Registration Rights. No person
has the right to require the Company or any of its subsidiaries to register any
securities for sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of the
Securities.
(ll) No
Stabilization. None of the
Company or any of its subsidiaries or, to the Company’s knowledge, any of their
respective directors, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed to, or which has constituted or that
could reasonably be expected to, cause or result in any stabilization or
manipulation of the price of the Securities.
(mm) Forward-Looking Statements. Each “forward-looking statement” (within the meaning of Section 27A of
the Securities Act or Section 21E of the Exchange Act) contained or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus has been made or reaffirmed with a reasonable basis and in good
faith.
(nn) Statistical and Market Data. Nothing has come to the attention of the Company that has caused the
Company to believe that statistical and market-related data included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus is not based on or derived from sources that the
Company believes are be reliable and accurate in all material
respects.
(oo) Sarbanes-Oxley Act. There
is and has been no failure on the part of the Company or, to the knowledge of
the Company, any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the related rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(pp) Status under the Securities Act. (i) At the time of filing the Registration Statement and any
post-effective amendment thereto, (ii) at the earliest time thereafter that the
Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of
the Securities, including through the use of a free writing prospectus, and
(iii) at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405 under the Securities Act.
-14-
(qq) Solvency. The Company and
the Guarantors taken as a whole are, and immediately after the Closing Date will
be, Solvent. As used herein, the term “Solvent” means, with
respect to any person on a particular date, that on such date (i) the fair
market value of the assets of such person is greater than the total amount of
liabilities (including contingent liabilities) of such person, (ii) the present
fair salable value of the assets of such person (determined on a going concern
basis) is not less than the amount that will be required to pay the probable
liabilities of such person on its debts as they become absolute and matured,
(iii) such person does not intend to, and does not believe that it will, incur
debts and other liabilities beyond such person’s ability to pay as they mature
and (iv) such person is not engaged in a business or transaction, and is not
about to engage in a business or transaction, for which such person’s property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that can
be reasonably expected to become an actual or matured liability.
(rr) XBRL. The interactive data
in the eXtensible Business Reporting Language (“XBRL”) included or incorporated by reference in the Registration Statement
fairly presents the information called for in all material respects and has been
prepared in all material respects in accordance with the Commission’s rules and
guidelines applicable thereto.
4. Covenants. The Company and
the Guarantors, jointly and severally, covenant and agree with each of the
Underwriters as follows:
(a) Required Filings. The
Company will file the Prospectus with the Commission within the time periods
specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; will file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and during the Prospectus Delivery
Period (as defined in Section 4(b)) and will furnish copies of the Prospectus
and each Issuer Free Writing Prospectus (to the extent not previously delivered)
to the Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of this Agreement in such quantities
as the Representative may reasonably request.
(b) Delivery of Copies. The
Company will deliver, without charge, (i) to the Representative, upon request, a
conformed copy of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed
therewith; and (ii) to each Underwriter (A) upon request, a conformed copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits and consents filed therewith) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including
all amendments and supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the Representative may
reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date
of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be
delivered (or required to be delivered but
for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
-15-
(c) Amendments or Supplements, Issuer Free Writing Prospectuses.
Before using, referring to or
filing any Issuer Free Writing Prospectus, and before filing any amendment or
supplement to the Registration Statement, the Pricing Disclosure Package or the
Prospectus, whether before or after the time that the Registration Statement
becomes effective, the Company will (i) furnish to the Representative and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and (ii) not use or file any such
Issuer Free Writing Prospectus or file any such proposed amendment or supplement
to which the Representative reasonably object (unless counsel advises the
Company that such filing is required under the Exchange Act at such time). The
Company’s obligations under this paragraph (c) shall expire on the Closing Date
unless the Representative shall notify the Company in writing otherwise on or
before the thirty-first day following the date of the Prospectus. If such notice
is given, the Company’s obligations under this paragraph (c) shall be in effect
from and as of the date of such notice and shall expire three months after the
Closing Date unless the Representative shall again notify the Company in writing
otherwise on or before the date three months after the Closing Date, in which
case the Company’s obligations under this paragraph (c) shall expire six months
after the Closing Date.
(d) Notice to the Representative. Until termination of the Prospectus Delivery Period, the Company will
advise the Representative promptly (or, in the case of clauses (v) and (vi),
promptly upon the Company becoming aware thereof), and confirm such advice in
writing, (i) when any amendment to the Registration Statement has been filed or
becomes effective (other than any amendments made by the filing of documents
under the Exchange Act); (ii) when any supplement to the Pricing Disclosure
Package or Prospectus or any amendment to the Pricing Disclosure Package or
Prospectus or any Issuer Free Writing Prospectus has been filed (other than any
amendments or supplements made by the filing of documents under the Exchange
Act); (iii) of any request by the Commission to the Company for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission to the Company for any
additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus; (v) of the
initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (vi) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or
supplemented would include 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 existing when the Prospectus, the Pricing Disclosure
Package or any such Issuer Free Writing Prospectus is delivered to a purchaser,
not misleading; and (vii) of the receipt by the Company of any notice with
respect to (a) any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or (b) the initiation or threatening of any
proceeding for such purpose; and the Company will use its reasonable efforts to
prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary
Prospectus, any of the Pricing Disclosure Package or the Prospectus or
suspending any such qualification of the
Securities and, if any such order is issued, will use reasonable efforts to
obtain as soon as possible the withdrawal thereof.
-16-
(e) Ongoing Compliance. (1) If
during the Prospectus Delivery Period (i) any event shall occur or condition
shall exist as a result of which the Prospectus as then amended or supplemented
would 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 existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission
and furnish to the Underwriters and to such dealers as the Representative may
designate such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law and (2)
if at any time prior to the Closing Date (i) any event shall occur or condition
shall exist as a result of which the Pricing Disclosure Package as then amended
or supplemented would 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 existing when the Pricing Disclosure Package is
delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Pricing Disclosure Package to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission (to the extent required) and
furnish to the Underwriters and to such dealers as the Representative may
designate such amendments or supplements to the Pricing Disclosure Package as
may be necessary so that the statements in the Pricing Disclosure Package as so
amended or supplemented will not, in the light of the circumstances existing
when the Pricing Disclosure Package is delivered to a purchaser, be misleading
or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The
Company and the Guarantors will take such actions as the Representative
reasonably request to qualify the Securities for offer and sale by the
Underwriters under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in
effect so long as required for distribution of the Securities; provided that the Company and the Guarantors shall not be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (ii)
file or take any action that would constitute a general consent to service of
process in any such jurisdiction or (iii) subject itself or any of its
affiliates to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The
Company will make generally available to its security holders and the
Representative as soon as reasonably practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after
the “effective date” (as defined in Rule 158) of the Registration Statement;
provided that such delivery requirements to the Company’s
security holders and the Representative shall be deemed met by the Company’s
compliance with its reporting requirements pursuant to the Exchange Act if such
compliance satisfies the conditions of Rule 158 thereof.
-17-
(h) Clear Market. During the
period of 30 days following the date of this Agreement, the Company will not,
without the prior written consent of Merrill Lynch, Pierce, Fenner & Smith
Incorporated (which consent may be withheld at the sole discretion of Merrill
Lynch, Pierce, Fenner & Smith Incorporated), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or establish an
open “put equivalent position” within the meaning of Rule 16a-1 under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering of,
or file any registration statement under the Securities Act in respect of, any
public debt securities of the Company (including securities offered pursuant to
Rule 144A under the Securities Act) having a tenor of more than one year or
securities exchangeable for or convertible into public debt securities of the
Company (including securities offered pursuant to Rule 144A under the Securities
Act) having a tenor of more than one year (other than as contemplated by this
Agreement).
(i) Use
of Proceeds. The Company will
apply the net proceeds from the sale of the Securities as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Use of proceeds.”
(j) No
Stabilization. The Company and
each Guarantor will not take, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of any security of the Company to facilitate the sale
of the Securities.
(k) DTC. The Company shall use
commercially reasonable efforts to obtain the approval of DTC to permit the
Notes to be eligible for “book-entry” transfer and settlement through the
facilities of DTC, and agrees to comply with all of its agreements set forth in
the representation letters of the Company to DTC relating to the approval of the
Notes by DTC for “book-entry” transfer.
(l) Record Retention. The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter, severally and not jointly,
hereby represents and agrees that:
(a) It has
not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning
for use of, any “free writing prospectus,” as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to
the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Schedule
C or prepared pursuant to Section
3(c) or Section 4(c) above (including any electronic road show), or (iii) any
free writing prospectus prepared by such underwriter and approved by the Company
in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing
Prospectus”).
-18-
(b) It has
not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such
terms have previously been included in a free writing prospectus filed with the
Commission; provided that Underwriters
may use a term sheet substantially in the form of Exhibit D hereto (the “Final Term
Sheet”) without the consent of
the Company; provided, further that any Underwriter using such term sheet shall notify the Company, and
provide a copy of such term sheet to the Company, prior to, or substantially
concurrently with, the first use of such term sheet.
6. Conditions to the Obligations of the Underwriters. The obligation of each Underwriter to purchase
the Securities on the Closing Date as provided herein is subject to the
performance by the Company and each Guarantor of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance, No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose
pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus, including the Final Term Sheet, shall have been timely filed with
the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company and each Guarantor
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date; and the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(c) No
Downgrade. Subsequent to the
earlier of (A) the Applicable Time and (B) the execution and delivery of this
Agreement, (i) no downgrading by Moody’s Investors Service Inc. and Standard
& Poor’s Ratings Services shall have occurred in the rating accorded any
debt securities of, or guaranteed by, the Company or any of its subsidiaries
that are rated by such organizations and (ii) no such organization shall have
publicly announced that it has under surveillance or review with possible
negative implications, or has changed its outlook with respect to, its rating of
any such debt securities (other than an announcement with positive implications
of a possible upgrading).
(d) No
Material Adverse Change. No event
or condition of a type described in Section 3(g) hereof shall have occurred or
shall exist, which event or condition is not described in the Pricing Disclosure
Package (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities on the Closing Date, on
the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
-19-
(e) Officer’s Certificate. The
Representative shall have received (A) on and as of the Closing Date, a
certificate of the Chief Financial Officer of the Company (i) confirming that
such officer has carefully reviewed the Registration Statement, the Pricing
Disclosure Package and the Prospectus and, to the knowledge of such officer, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct,
(ii) confirming that the other representations and warranties of the Company in
this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and (iii) to the effect set forth in
paragraphs (a), (c) and (d) above, and (B) on and as of the date of this
Agreement and on and as of the Closing Date, certificates of the Chief Financial
Officer of the Company confirming certain matters as to Amendment No. 1 to the
Company’s Annual Report on Form 10-K/A for the fiscal year ended September 28,
2014.
(f) Comfort Letters. On the
date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall
have furnished to the Representative, at the request of the Company, letters,
dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus; provided that the letter
delivered on the Closing Date, shall use a “cut-off” date no more than three
business days prior to such Closing Date.
(g) Opinions and Negative Assurance Statement of Counsel for the
Company. The Representative shall
have received (i) an opinion and negative assurance statement of Chadbourne
& Parke LLP, counsel for the Company, dated the Closing Date, and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Exhibit A hereto, (ii) an opinion of the General Counsel of the Company, dated the
Closing Date, and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representative, substantially to the effect set
forth in Exhibit B hereto and (iii) an opinion of Faegre Baker
Daniels LLP, Indiana counsel for the Company, dated the Closing Date, and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative, substantially to the effect set forth in Exhibit C hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters.
The Representative shall have
received on and as of the Closing Date, an opinion and 10b-5 statement of Davis
Polk & Wardwell LLP, counsel for the Underwriters, with respect to such
matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(i) No
Legal Impediment to Issuance. No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Securities; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities.
-20-
(j) Good
Standing. The Representative
shall have received on and as of the Closing Date, satisfactory evidence of the
good standing of the Company, each domestic Guarantor and its domestic
Significant Subsidiaries in their respective jurisdictions of organization and
in such other domestic jurisdictions as the Representative may reasonably
request (to the extent such concept is relevant in their respective
jurisdictions of organization or such other jurisdictions), in each case in
writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k) Form of Securities and
Indenture. The Notes, the
Guarantees and the Indenture shall be executed by the Company, or the
Guarantors, as the case may be, in form and substance reasonably satisfactory to
the Representative.
(l) Additional Documents.
On or prior to the Closing Date,
the Company shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters,
certificates and evidence mentioned above or elsewhere in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriters. The Company and the
Guarantors agree, jointly and severally, to indemnify and hold harmless each
Underwriter, its affiliates, selling agents, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
reasonable outside legal fees and other expenses reasonably incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, to which they may become
subject insofar as such losses, claims, damages or liabilities arise out of, or
are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, not misleading,
(ii) or any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act or any Pricing Disclosure
Package (including any Pricing Disclosure Package that has subsequently been
amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any Underwriter
Information (as defined below in Section 7(b)).
-21-
(b) Indemnification of the
Company and the Guarantors. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Guarantors, their respective directors, their respective
officers and each person, if any, who controls the Company or any of the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
(including, without limitation, reasonable outside legal fees and other expenses
reasonably incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred) that arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any Underwriter
Information (as defined below in this Section 7(b)) in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus or any Pricing Disclosure Package, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following (collectively, the “Underwriter Information”):
(1) the names of the Underwriters on the cover page of the Preliminary
Prospectus and the Prospectus; (2) the names of the Underwriters in the first
paragraph (including the table) under the caption “Underwriting” in the
Preliminary Prospectus and the Prospectus; and (3) the seventh and eighth
paragraphs under the caption “Underwriting” in the Preliminary Prospectus and
sixth and seventh paragraphs under the caption “Underwriting” in the Prospectus.
(c) Notice and Procedures.
If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
“Indemnified
Person”) shall promptly notify
the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve the
Indemnifying Person from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure
to notify the Indemnifying Person shall not relieve the Indemnifying Person from
any liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) above. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall assume the defense thereof and retain
counsel reasonably satisfactory to the Indemnified Person (who shall not,
without the consent of the Indemnified Person, be counsel to the Indemnifying
Person) to represent the Indemnified Person in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be paid or reimbursed as they are incurred. Any such separate firm for
any Underwriter, its affiliates, selling agents, directors and officers and any
control persons of such Underwriter shall be designated in writing by Merrill
Lynch, Pierce, Fenner & Smith Incorporated and any such separate firm for
the Company, the Guarantors, their respective directors and officers and any
control persons of the Company or any Guarantor shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final non-appealable judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x)
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
-22-
(d) Contribution. If the indemnification provided for in paragraphs
(a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors, on the one hand, and the
Underwriters, on the other, from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company and the Guarantors,
on the one hand, and the Underwriters, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors, on the one hand,
and the Underwriters, on the other, shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses, but after deducting
underwriting discounts and commissions) received by the Company from the sale of
the Securities and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company and the Guarantors, on the one
hand, and the Underwriters, on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Underwriters
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
-23-
(e) Limitation on Liability.
The Company, the Guarantors and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Person in
connection with any such action or claim under this Section 7. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be required
to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect to the
offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies.
The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of
Agreement. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
9. Termination of this
Agreement. This Agreement may be
terminated in the absolute discretion of the Representative, by notice to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the NYSE, the NYSE MKT, the Nasdaq Stock Market, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on the NYSE or in any over-the-counter market;
(iii) a general moratorium on commercial banking activities shall have been
declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representative, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the Closing Date, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the
Prospectus. Notwithstanding anything to the contrary in this Agreement, any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of the Underwriters or the Company or any Guarantor,
except that the Company and the Underwriters will continue to be liable for the
payment of expenses as set forth in Section 11 hereof and except that the
provisions of Section 7 hereof shall not terminate and shall remain in effect.
-24-
10. Default of One or More of
the Several Underwriters. If, on
the Closing Date, any one or more of the several Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
does not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, the other Underwriters shall be obligated, severally, in
the proportions that the aggregate principal amount of Securities to be
purchased set forth opposite their respective names on Schedule A bears to the aggregate principal amount of Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as may be specified by the Representative with the consent of the non-defaulting
Underwriters, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on such
date and the aggregate principal amount of Securities with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Securities to be
purchased on such date, and arrangements satisfactory to the Representative and
the Company for the purchase of such Securities on the terms contained in this
Agreement are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 7, Section 11 and Section 15(c) shall at all times be
effective and shall survive such termination. In any such case either the
non-defaulting Representative or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary to the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other
documents or arrangements may be effected. As used in this Agreement, the term
“Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken
under this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
11. Payment of
Expenses.
(a) Whether or not the
transactions contemplated by this Agreement are consummated or this Agreement is
terminated, the Company and the Guarantors, jointly and severally, agree to pay
or cause to be paid all costs and expenses incident to the performance of their
obligations hereunder, including without limitation, (i) all expenses incident
to the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Underwriters,
(iii) all fees and expenses of the Company’s and the Guarantors’ counsel,
independent public or certified public accountants and other advisors, (iv) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), each Issuer Free Writing Prospectus, each Preliminary Prospectus and
the Prospectus, and all amendments and supplements thereto, and the mailing and
delivering of copies thereof and of this Agreement, the Indenture and the
Securities to the Underwriters and dealers, (v) all filing fees and reasonable
out-of-pocket attorneys’ fees and expenses incurred by the Company, the
Guarantors or the Underwriters in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part
of the Securities for offer and sale under the securities laws of the several
states of the United States, the provinces of Canada or other jurisdictions
designated by the Underwriters (including, without limitation, the cost of
preparing, printing and mailing preliminary and final Blue Sky or legal
investment memoranda, not to exceed $10,000), (vi) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (vii) any fees payable in
connection with the rating of the Securities with the ratings agencies, (viii)
any filing fees for FINRA’s review of the
offering of the Securities, (ix) all fees and expenses (including reasonable
fees and expenses of counsel) of the Company and the Guarantors in connection
with approval of the Securities by DTC for “book-entry” transfer, and (x) all
expenses incident to the “road show” for the offering of the Securities,
including the cost of any transportation, and (xi) all other fees, costs and
expenses referred to in Item 14 of Part II of the Registration Statement. It is
understood and agreed, however, that, except as provided in this Section 11 and
in Section 7 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel.
-25-
(b) If (i) this Agreement is
terminated pursuant to Section 9, (ii) the Company for any reason fails to
tender the Securities for delivery to the Underwriters (other than pursuant to
Section 10) or (iii) the Underwriters decline to purchase the Securities for any
reason permitted under this Agreement, the Company and the Guarantors, jointly
and severally, agree to reimburse the Underwriters for all accountable
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12. Persons Entitled to
Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and any
controlling persons referred to in Section 7 hereof. Nothing in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from any Underwriter
shall be deemed to be a successor merely by reason of such purchase.
13. Representations and
Indemnities to Survive Delivery.
The respective indemnities, rights of contribution, representations, warranties
and agreements of the Company, the Guarantors and the Underwriters contained in
this Agreement or made by or on behalf of the Company, the Guarantors or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement
or any investigation made by or on behalf of the Company, the Guarantors or the
Underwriters.
14. Certain Defined
Terms. For purposes of this
Agreement, (a) except where otherwise expressly provided, the term
“affiliate” has the meaning set forth in Rule 405 under the
Securities Act; (b) the term “business day” means any
day other than a day on which banks are permitted or required to be closed in
New York City; and (c) the term “subsidiary” has the
meaning set forth in Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Authority of the
Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the
Underwriters, and any such action taken by the Representative shall be binding
upon the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement made or given by the
Representative on behalf of the Underwriters.
-26-
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to
the Underwriters shall be given to the Representative at Merrill Lynch, Pierce,
Fenner & Smith Incorporated, 50 Rockefeller Plaza, New York, NY 10020, Fax:
(212) 901-7897, Attention: High Yield Legal Department. Notices to the Company
shall be given to it at Meritor, Inc., 2135 West Maple Road, Troy, Michigan
48084-7186, (fax: (248) 435-2184); Attention: Senior Vice President, General
Counsel and Secretary.
(c) Governing Law.
This Agreement and any claim,
controversy or dispute arising under or related to this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such state.
(d) Waiver of Jury Trial.
Each of the Company and the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
(e) Counterparts.
This Agreement may be signed in
counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
(f) Amendments or Waivers.
No amendment or waiver of any
provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
(g) Headings. The headings herein are included for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
-27-
If the foregoing is in
accordance with your understanding, please indicate your acceptance of this
Agreement by signing in the space provided below. It is understood that your
acceptance of this Agreement on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters but without
warranty on your part as to the authority of the signers thereof.
Very
truly yours, |
|
|
MERITOR, INC. |
|
|
|
|
| By:
|
/s/ Carl D. Anderson, II |
|
Name:
|
Carl D. Anderson,
II |
|
Title: |
Vice President
and Treasurer |
| Guarantors |
| |
| ARVIN
TECHNOLOGIES, INC. |
| ARVINMERITOR
BRAKE HOLDINGS, LLC |
| ARVINMERITOR
FILTERS OPERATING CO., LLC |
| ARVINMERITOR,
INC. |
| ARVINMERITOR OE,
LLC |
| ARVINMERITOR
TECHNOLOGY, LLC |
| AVM,
INC. |
| MAREMONT
CORPORATION |
| MAREMONT EXHAUST
PRODUCTS, INC. |
| MERITOR
AFTERMARKET USA, LLC |
| MERITOR HEAVY
VEHICLE BRAKING SYSTEMS |
| (U.S.A.),
LLC |
| MERITOR HEAVY
VEHICLE SYSTEMS, LLC |
| MERITOR HEAVY
VEHICLE SYSTEMS (SINGAPORE) |
| PTE.,
LTD. |
| MERITOR HEAVY
VEHICLE SYSTEMS (VENEZUELA), |
|
INC. |
| MERITOR HOLDINGS,
LLC |
| MERITOR, INC., a
Nevada Corporation |
| MERITOR
INTERNATIONAL HOLDINGS, LLC |
| MERITOR
MANAGEMENT CORP. |
| MERITOR
TECHNOLOGY, LLC |
| By:
|
/s/ Carl D. Anderson, II |
|
Name:
|
Carl D. Anderson,
II |
|
Title: |
Vice President
and Treasurer |
| ARVIN HOLDINGS
NETHERLANDS B.V. |
| MERITOR HOLDINGS
NETHERLANDS B.V. |
| MERITOR
LUXEMBOURG S.A.R.L. |
| MERITOR
NETHERLANDS B.V. |
| By:
|
/s/ Mark R. Schaitkin |
|
Name:
|
Mark R.
Schaitkin |
|
Title: |
Director |
|
ARVINMERITOR SWEDEN
AB |
| |
| By: |
/s/ Paul
Bialy |
|
Name: |
Paul Bialy |
|
Title: |
Director |
| EXECUTED AS A DEED by |
) |
/s/ Mark R. Schaitkin |
| ARVIN EUROPEAN HOLDINGS (UK) |
) |
Duly
Authorized Signatory |
| LIMITED |
) |
|
|
|
) |
Name: |
Mark R. Schaitkin |
|
) |
|
|
|
) |
Title: |
Director |
|
) |
|
|
in the presence of:
| /s/ Mary Lou Patterson |
| Signature of
Witness |
| Name: |
Mary Lou Patterson |
|
|
| Address: |
2135 W.
Maple Rd. |
|
Troy, Michigan 48084 |
|
|
| Occupation:
|
Legal Assistant |
|
|
(Note: These details are to be completed in the witness’s own
hand writing.) |
| EXECUTED AS A DEED by |
) |
/s/ Mark R. Schaitkin |
| ARVINMERITOR LIMITED |
) |
Duly
Authorized Signatory |
|
) |
|
|
|
) |
Name: |
Mark R. Schaitkin |
|
) |
|
|
|
) |
Title: |
Director |
|
) |
|
|
in the presence of:
| /s/ Mary Lou Patterson |
| Signature of
Witness |
| Name: |
Mary Lou Patterson |
|
|
| Address: |
2135 W.
Maple Rd. |
|
Troy, Michigan 48084 |
|
|
| Occupation:
|
Legal Assistant |
|
|
|
(Note: These details
are to be completed in the witness’s own hand writing.)
|
| EXECUTED AS A DEED
by |
) |
/s/ Mark R. Schaitkin |
| MERITOR CAYMAN ISLANDS,
LTD. |
) |
Duly Authorized Signatory |
|
) |
|
|
|
) |
Name:
|
Mark R.
Schaitkin |
|
) |
|
|
|
) |
Title: |
President and Secretary |
|
) |
|
|
in the presence of:
| /s/ Mary Lou Patterson |
| Signature of
Witness |
| Name: |
Mary Lou
Patterson |
|
|
| Address: |
2135 W. Maple Rd. |
|
Troy,
Michigan 48084 |
|
|
| Occupation: |
Legal
Assistant |
|
|
|
(Note: These details
are to be completed in the witness’s own hand writing.)
|
The foregoing Agreement is
hereby confirmed and accepted by the Representative as of the date first above
written.
MERRILL LYNCH, PIERCE, FENNER & SMITH |
INCORPORATED
|
|
Acting as
Representative of the
several Underwriters named in
the attached
Schedule A. |
| |
|
| By:
|
Merrill Lynch,
Pierce, Fenner & Smith |
|
Incorporated |
| |
| By: |
/s/ Mark W. Kushemba |
|
Authorized Signatory |
[Signature Page to Underwriting
Agreement]
SCHEDULE A
|
|
Aggregate |
|
|
Principal |
|
|
Amount of |
|
|
Notes |
| Underwriters |
|
To
Be |
|
|
Purchased |
| Merrill Lynch,
Pierce, Fenner & Smith |
|
$45,000,000 |
| Incorporated |
|
|
| J.P. Morgan
Securities LLC |
|
40,500,000 |
| Citigroup Global
Markets Inc. |
|
36,000,000 |
| RBC Capital
Markets, LLC |
|
36,000,000 |
| Lloyds Securities
Inc. |
|
31,500,000 |
| BNP Paribas
Securities Corp. |
|
11,250,000 |
| Fifth Third
Securities, Inc. |
|
6,188,000 |
| Comerica
Securities, Inc. |
|
6,188,000 |
| The Huntington
Investment Company |
|
6,187,000 |
| PNC Capital
Markets LLC |
|
6,187,000 |
| Total |
|
$225,000,000 |
SCHEDULE B
Guarantors
| Arvin European
Holdings (UK) Limited |
| Arvin Holdings
Netherlands B.V. |
| Arvin
Technologies, Inc. |
| ArvinMeritor
Brake Holdings, LLC |
| ArvinMeritor
Filters Operating Co., LLC |
| ArvinMeritor,
Inc. |
| ArvinMeritor
Limited |
| ArvinMeritor OE,
LLC |
| Arvinmeritor
Sweden AB |
| ArvinMeritor
Technology, LLC |
| AVM,
Inc. |
| Maremont
Corporation |
| Maremont Exhaust
Products, Inc. |
| Meritor
Aftermarket USA, LLC |
| Meritor Cayman
Islands, Ltd. |
| Meritor Heavy
Vehicle Braking Systems (U.S.A.), LLC |
| Meritor Heavy
Vehicle Systems, LLC |
| Meritor Heavy
Vehicle Systems (Singapore) Pte., Ltd. |
| Meritor Heavy
Vehicle Systems (Venezuela), Inc. |
| Meritor Holdings
Netherlands B.V. |
| Meritor Holdings,
LLC |
| Meritor, Inc., a
Nevada corporation |
| Meritor
International Holdings, LLC |
| Meritor
Luxembourg S.a.r.l. |
| Meritor
Management Corp. |
| Meritor
Netherlands B.V. |
| Meritor
Technology, LLC |
SCHEDULE C
Schedule of Free Writing
Prospectuses included in the Disclosure Package
Final Term Sheet
SCHEDULE D
Significant Subsidiaries
| Arvin
Technologies, Inc. |
| ArvinMeritor
Brake Holdings, LLC |
| ArvinMeritor
Holdings France SNC |
| ArvinMeritor
Receivables Corporation |
| ArvinMeritor
Technology, LLC |
| Maremont
Corporation |
| Meritor Brazil
Holdings, LLC |
| Meritor Heavy
Vehicle Systems Cameri SpA |
| Meritor Heavy
Vehicle Systems, LLC |
| Meritor HVS
AB |
| Meritor
International Holdings, LLC |
| Meritor
Manufacturing de Mexico, S.A. de C.V. |
| Meritor Mexicana,
S.A. de C.V. |
Exhibit A
Form of Opinion of
Chadbourne & Parke LLP
Exhibit
A-1
Exhibit B
Form of Opinion of
Sandra J. Quick, Esq.
Exhibit B-1
Exhibit C
Form of Opinion of
Faegre Baker Daniels LLP
Exhibit
C-1
Exhibit D
Issuer Free Writing
Prospectus
Exhibit
D-1
