RPM INTERNATIONAL INC.
Exhibit 1.1
Execution
Version
RPM INTERNATIONAL INC.
$250,000,000
6.50%
Notes due 2018
February 14, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Wachovia Capital Markets, LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Wachovia Capital Markets, LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
February 14, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
▇▇▇▇▇▇▇, SACHS & CO.
WACHOVIA CAPITAL MARKETS, LLC
▇▇▇▇▇▇▇, SACHS & CO.
As Representatives of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. RPM International Inc., a Delaware corporation (the “Company”), proposes to
issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting
severally and not jointly, the respective amounts set forth in such
Schedule A of $250,000,000
aggregate principal amount of the Company’s 6.50% Notes due 2018 (the “Notes”). Banc of America
Securities LLC, Wachovia Capital Markets, LLC and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. have agreed to act as
representatives of the several Underwriters (in such capacity, the “Representatives”) in connection
with the offering and sale of the Notes.
The
Notes will be issued pursuant to an indenture, dated as of
February 14, 2008 (the “Base Indenture”),
between the Company and The Bank of New York, as trustee (the “Trustee”). Certain terms of the
Notes will be established pursuant to an Officers Certificate to the Base Indenture (together with
the Base Indenture, the “Indenture”). The Notes will be issued in book-entry form in the name of
Cede & Co., as nominee of The Depository Trust Company (the “Depositary”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as defined in Section 2 below) (the
“DTC Agreement”), among the Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File
No. [333-149232]), which contains a base
prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of
debt securities, including the Notes, and other securities of the Company under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
“Securities Act”), and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under the Securities Act, including any
required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act, is called the “Registration Statement.” The term “Prospectus” shall mean
the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed (the
“Execution Time”) by the parties hereto. The term “Preliminary
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Prospectus” shall mean any preliminary prospectus supplement relating to the Notes, together
with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any
reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents that are or are deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 4:00 p.m. on
February 14, 2008 (the “Initial Sale Time”). All references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (“▇▇▇▇▇”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference in the
Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the
Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1. Representations and Warranties of the Company
The Company hereby represents, warrants and covenants to each Underwriter as of the date
hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “Representation
Date”), as follows:
a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission,
and any request on the part of the Commission for additional information has been complied with.
In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times the Registration Statement and any post-effective amendments thereto
(including the filing with the Commission by the Company of any documents or reports incorporated
by reference therein) became effective and at each Representation Date, the Registration Statement
and any amendments thereto (i) complied and will comply in all material
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respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) 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 to make the statements therein not misleading. At the
date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or
supplements thereto included or will include an untrue statement of a material fact or omitted or
will 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. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or any post-effective amendment or the Prospectus or any amendments
or supplements thereto made in reliance upon and in conformity with information furnished to the
Company in writing by any of the Underwriters through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC,
complied in all material respects with the Securities Act, and the Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will,
at the time of such delivery, be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus dated February 14, 2008 and (ii) the issuer free writing prospectuses as defined in Rule 433 of the
Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Annex I hereto.
As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an 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.
d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by
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post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any
offer relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act, and
(iv) as of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in
Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405 of the Securities Act, that automatically became effective not
more than three years prior to the Execution Time; the Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.
e) Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained or incorporated by reference
in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained or incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus the Company has promptly notified or will promptly notify
the Representatives and has promptly amended or supplemented or will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter through the Representatives
consists of the information described as such in Section 8 hereof.
g) Distribution of Offering Material By the Company. The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of the Underwriters’
distribution of the Notes, any offering material in connection with the offering and sale of the
Notes other than the Preliminary Prospectus, the Prospectus, and any Issuer Free Writing Prospectus
reviewed and consented to by the Representatives and included in Annex I hereto or the Registration
Statement.
h) No Applicable Registration or Other Similar Rights. There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under
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the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
j) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act and 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 the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized 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 authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles, and will be entitled to the benefits of the Indenture.
l) Description of the Notes and the Indenture. The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
m) Accuracy of Statements in Prospectus. The statements in each of the Preliminary Prospectus
and the Prospectus under the captions “Description of Notes,” “Description of Capital Stock,”
“Description of Debt Securities,” “Description of Other Securities,” and “Certain U.S. Federal
Income Tax Considerations”, in each case insofar as such
statements constitute a summary of the legal matters, documents or proceedings referred to therein,
fairly present and summarize, in all material respects, the matters referred to therein.
n) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
there has been no material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise, or in the earnings,
management, business, results of operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Company and its subsidiaries, considered as one entity
(any such change is called a “Material Adverse Change”), (ii) there have been no transactions
entered into by the Company or any of its Significant Subsidiaries (as defined below), other than
those in the ordinary course of business, which are material with respect to the Company and its
Significant Subsidiaries considered as one entity, (iii) except for regular quarterly dividends on
the Company’s common stock, par value $0.01 per
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share, in amounts per share that are consistent with past practice, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class of its capital
stock, and (iv) there has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its Significant Subsidiaries (as defined below), except as
disclosed in the Disclosure Package.
o) Independent Accountants. Ernst & Young LLP, who have expressed their opinion with respect
to the Company’s audited financial statements for the fiscal years ended May 31, 2007 and 2006
incorporated by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, are independent public accountants with respect to the Company as required by the
Securities Act and the Exchange Act and are an independent registered public accounting firm with
the Public Company Accounting Oversight Board. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP, who have expressed their
opinion with respect to the Company’s audited financial statements for the fiscal years ended May
31, 2005 incorporated by reference in the Registration Statement, the Preliminary Prospectus and
the Prospectus, were, during the audit and professional engagement period (as defined in PCAOB Rule
35D1(a)(iii)) independent public accountants with respect to the Company as required by the
Securities Act and the Exchange Act.
p) Preparation of the Financial Statements. The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of their operations,
stockholders’ equity and cash flows for the periods specified. Such financial statements comply as
to form with the accounting requirements of the Securities Act and have been prepared in conformity
with generally accepted accounting principles as applied in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto. The supporting schedules incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. No other financial statements are required to be
included in the Registration Statement. The selected financial data and the summary financial
information included in the Preliminary Prospectus and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement, the Preliminary Prospectus and the
Prospectus. In addition, if any pro forma financial statements of the Company and its
subsidiaries and the related notes thereto are included in the Registration Statement, the
Preliminary Prospectus and the Prospectus, such pro forma financial statements and related notes
present fairly the information shown therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
q) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company
and its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X, the “Significant
Subsidiaries”) has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has corporate power and
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authority to own or lease, as the case may be, and operate its properties and to conduct its
business as described in the Disclosure Package and the Prospectus and, in the case of the Company,
to enter into and perform its obligations under this Agreement. Each of the Company and each
Significant Subsidiary is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and, except for directors’ qualifying shares and third party interests
in joint ventures in which the Company invests, are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
claim. The Company does not have any subsidiary not listed on Exhibit 21 to its Annual Report on
Form 10-K for the fiscal year ended May 31, 2007 which is required to be so listed.
r) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the Prospectus under the
caption “Capitalization” (other than for subsequent issuances, if any, pursuant to the employee
benefit plans or other agreements described in the Disclosure Package and the Prospectus or upon
exercise of convertible securities or outstanding options described in the Disclosure Package and
the Prospectus, as the case may be).
s) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
Neither the Company nor any of its Significant Subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time or both, would be in default) (“Default”) under its
charter or by-laws, (ii) in Default under any indenture, mortgage, loan or credit agreement, deed
of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject (each, an “Existing Instrument”) or (iii) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, as applicable, except, with respect to clauses (ii)
and (iii) only, for such Defaults or violations as would not, individually or in the aggregate
result in a Material Adverse Change. The Company’s execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby, by the Disclosure Package and
by the Prospectus (i) have been duly authorized by all necessary corporate action and will not
result in any Default under the charter or by-laws of the Company or any subsidiary, (ii) will not
conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, and (iii) will not result in any violation
of any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or
any of its or their properties. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or
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regulatory authority or agency is required for the Company’s execution, delivery and
performance of this Agreement or consummation of the transactions contemplated hereby, by the
Disclosure Package or by the Prospectus, except such as have been obtained or made by the Company
and are in full force and effect under the Securities Act, the Trust Indenture Act, applicable
state securities or blue sky laws and from the Financial Industry Regulatory Authority (“FINRA”).
As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or
with the giving of notice or lapse of time or both would give, the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the
Company, the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
t) No Material Actions or Proceedings. Except as disclosed in the Prospectus and the
Disclosure Package, there are no legal or governmental actions, suits or proceedings pending or, to
the best of the Company’s knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned
or leased by, the Company or any of its subsidiaries or (iii) relating to environmental or
discrimination matters related to the Company or its subsidiaries, where any such action, suit or
proceeding, if determined adversely, could, individually or in the aggregate, result in a Material
Adverse Change or adversely affect the consummation of the transactions contemplated by this
Agreement.
u) Labor Matters. No material dispute with the employees of the Company or any of its
subsidiaries exists, and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers,
that could, individually or in the aggregate, result in a Material Adverse Change.
v) Intellectual Property Rights. Except as set forth in the Disclosure Package and the
Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or possess a valid
right to use all patents, trademarks, service marks, trade names, copyrights, patentable
inventions, trade secret, know-how and other intellectual property (collectively, the “Intellectual
Property”) used by the Company or its subsidiaries in, and material to, the conduct of the
Company’s or its subsidiaries’ business as now conducted or as proposed in the Disclosure Package
and the Prospectus to be conducted. Except as set forth in the Disclosure Package and the
Prospectus, there is no material infringement by third parties of any of the Company’s Intellectual
Property and there are no legal or governmental actions, suits, proceedings or claims pending or,
to the Company’s knowledge, threatened, against the Company (i) challenging the Company’s rights in
or to any Intellectual Property, (ii) challenging the validity or scope of any Intellectual
Property owned by the Company, or (iii) alleging that the operation of the Company’s business as
now conducted infringes or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of a third party, and the Company is unaware of any facts which would form
a reasonable basis for any such claim.
w) All Necessary Permits, etc. The Company and each Significant Subsidiary possess such valid
and current certificates, authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor any Significant
Subsidiary has received any notice of proceedings relating to the revocation or
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modification of, or non-compliance with, any such certificate, authorization, permit, license,
approval, consent or other authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could result in a Material Adverse Change.
x) Title to Properties. Except as otherwise disclosed in the Disclosure Package and the
Prospectus, the Company and each of its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial statements referred to in Section 1(p)
above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or such subsidiary.
y) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings, except where a
default to make such filings or payments would not result in a Material Adverse Change. The
Company has made appropriate provisions in the applicable financial statements referred to in
Section 1(p) above in respect of all federal, state, local and foreign income and franchise taxes
for all current or prior periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
z) Company Not an “Investment Company.” Neither the Company nor any of its subsidiaries is,
nor after receipt of payment for the Notes and the application of the proceeds thereof as
contemplated under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus
will be, an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
aa) Insurance. The Company and its subsidiaries are insured by recognized, financially sound
and reputable institutions with policies in such amounts and with such deductibles and covering
such risks as are generally deemed adequate and customary for their businesses including, but not
limited to, policies covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes. All policies
of insurance insuring the Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or defending under a
reservation of rights clause; and, except as set forth in the Disclosure Package and the
Prospectus, neither the Company nor any such subsidiary has been
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refused any insurance coverage sought or applied for. The Company has no reason to believe
that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would not
result in a Material Adverse Change.
bb) No Price Stabilization or Manipulation. The Company has not taken and will not take,
directly or indirectly, any action designed to or that would be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes.
cc) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or any subsidiary or any other person required to be described
in the Preliminary Prospectus or the Prospectus that have not been described as required.
dd) No Unlawful Contributions or Other Payments. 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 aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the FCPA, including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
ee) 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 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, (ii) each such grant was made in
accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable
laws and regulatory rules or requirements, including the rules of the New York Stock Exchange and
any other exchange on which Company securities are traded, (iii) the per share exercise price of
each Stock Option was equal to the fair market value of a share of common stock on the applicable
Grant Date and (iv) each such grant was properly accounted for in accordance with GAAP in the
financial statements (including the related notes)
10
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 there has been no policy or practice of the Company of granting, Stock Options prior to,
or otherwise coordinate 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.
ff) No Conflict with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
gg) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds, to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
hh) Compliance with Environmental Laws. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, (i) neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign law, regulation, order, permit or other requirement relating
to pollution or protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws and regulations relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, “Materials of Environmental Concern”), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Materials of Environment Concern (collectively, “Environmental Laws”), which
violation includes, but is not limited to, noncompliance with any permits or other governmental
authorizations required for the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the
Company or any of its subsidiaries received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the Company or any of its
subsidiaries is in violation of any Environmental Law, except as would not, individually or in the
aggregate, result in Material Adverse Change; (ii) there is no claim, action or cause of action
filed with a court or governmental authority, no investigation with respect to which the Company
has received written notice, and no written notice by any person or entity alleging potential
liability for investigatory costs, cleanup costs,
11
governmental responses costs, natural resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or resulting from the presence, or release
into the environment, of any Material of Environmental Concern at any location owned, leased or
operated by the Company or any of its subsidiaries, now or in the past (collectively,
“Environmental Claims”), pending or, to the best of the Company’s knowledge, threatened against the
Company or any of its subsidiaries or any person or entity whose liability for any Environmental
Claim the Company or any of its subsidiaries has retained or assumed either contractually or by
operation of law, except as would not, individually or in the aggregate, result in a Material
Adverse Change; (iii) to the best of the Company’s knowledge, there are no past, present or
anticipated future actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any Environmental Law,
require expenditures to be incurred pursuant to Environmental Law, or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law, except as would not, individually or in the
aggregate, result in a Material Adverse Change; and (iv) neither the Company nor any of its
subsidiaries is subject to any pending or threatened proceeding under Environmental Law to which a
governmental authority is a party and which is reasonably likely to result in a Material Adverse
Change.
ii) Periodic Review of Costs of Environmental Compliance. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that such associated costs
and liabilities would not, individually or in the aggregate, reasonably expected to result in a
Material Adverse Change.
jj) ERISA Compliance. The Company and its subsidiaries and any “employee benefit plan” (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in
compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to the
Company or a subsidiary, any member of any group of organizations described in Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), of
which the Company or such subsidiary is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates. No
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of
12
ERISA with respect to termination of, or withdrawal from, any “employee benefit plan,” (ii)
Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal
Revenue Code with respect to the excise tax imposed thereunder. Each “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service and nothing has occurred, whether by action
or failure to act, which is reasonably likely to cause disqualification of any such employee
benefit plan under Section 401(a) of the Internal Revenue Code.
kk) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. There is and has been no failure on the part of the Company
and any of the Company’s directors or officers, in their capacities as such, to comply with any
provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection
therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and
906 related to certifications.
ll) Company’s Accounting System. The Company and its subsidiaries maintain effective internal
control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act.
mm) Internal Controls and Procedures. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C) access to assets is permitted only
in accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
nn) No Material Weakness in Internal Controls. Except as disclosed in the Disclosure Package
and the Prospectus or in any document incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting.
oo) Accuracy of Exhibits. There are no franchises, contracts or documents which are required
to be described in the Registration Statement, the Disclosure Package, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits to the Registration
Statement which have not been so described and filed as required
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
13
Section 2. Purchase, Sale and Delivery of the Notes.
a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company the aggregate principal amount of Notes set forth opposite their names on Schedule A at
a purchase price of 97.876% of the principal amount of the Notes, payable on the Closing Date.
b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (or such other place as may be
agreed to by the Company and the Representatives) at 9:00 a.m., New
York City time, on February 20, 2008,
or such other time and date as the Underwriters and the Company shall mutually agree (the time and
date of such closing are called the “Closing Date”).
c) Public Offering of the Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives 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) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Notes at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Notes shall be in such
denominations and registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as the
Representatives may designate. 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.
Section 3. Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
14
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to ascertain promptly whether the Preliminary
Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file such document. The Company
will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”), the
Company will give the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement, or any amendment, supplement or revision to the Disclosure Package or
the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish
the Representatives with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes
15
permitted by the Securities Act. The Company will furnish to each Underwriter, without
charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an 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 at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and (2) promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the Disclosure Package or
the Prospectus comply with such law, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the Underwriters may reasonably
request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and
the Prospectus.
16
h) Depositary. The Company will cooperate with the Underwriters and use its best efforts to
permit the Notes to be eligible for clearance and settlement through the facilities of the
Depositary.
i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall
file, on a timely basis, with the Commission and the New York Stock Exchange all reports and
documents required to be filed under the Exchange Act.
j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), 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(h)
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 debt securities of the
Company similar to the Notes or securities exchangeable for or convertible into debt securities
similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k) Final Term Sheet. The Company will prepare a final term sheet containing only a
description of the Notes, in a form approved by the Underwriters and attached as Exhibit C hereto,
and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time
required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an
Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted Free Writing Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or retained by the Company under Rule
433 of the Securities Act; provided that the prior written consent of the Representatives shall be
deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to
this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the
Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use by any Underwriter of a free writing
prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b)
contains only (i) information describing the preliminary terms of the Notes or their offering, (ii)
information permitted by Rule 134 under the Securities Act or (iii) information that describes the
final terms of the Notes or their offering and that is included in the Final Term Sheet of the
Company contemplated in Section 3(k).
17
m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the
Notes remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it
has not already done so and is eligible to do so, a new automatic shelf registration statement
relating to the Notes, in a form satisfactory to the Representatives. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company will prior to the Renewal
Deadline, if it has not already done so, file a new shelf registration statement relating to the
Notes, in a form satisfactory to the Representatives, and will use its best efforts to cause such
registration statement to be declared effective within 60 days after the Renewal Deadline. The
Company will take all other action necessary or appropriate to permit the public offering and sale
of the Notes to continue as contemplated in the expired registration statement relating to the
Notes. References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
n) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating to the Notes, in a
form satisfactory to the Representatives, (iii) use its best efforts to cause such registration
statement of post-effective amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company
has otherwise become ineligible. References herein to the Registration Statement shall include
such new registration statement or post-effective amendment, as the case may be.
o) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the
Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the
Securities Act.
p) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will comply with all applicable securities
and other laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and
use its best efforts to cause the Company’s directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without limitation, the provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
q) No Manipulation of Price. The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be expected to
constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
18
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Notes, (iii) all fees and expenses of the Company’s counsel, independent public or certified public
accountants and other advisors to the Company, (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, the Preliminary Prospectus and the Prospectus, and all amendments
and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v)
all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky
Survey” or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by
FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee, including
the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture
and the Notes, (viii) any fees payable in connection with the rating of the Notes with the ratings
agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the
Company in connection with approval of the Notes by the Depositary for “book-entry” transfer, (x)
all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement,
and (xi) all other fees, costs and expenses incurred in connection with the performance of its
obligations hereunder for which provision is not otherwise made in this Section. Except as
provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
a) Effectiveness of Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b)
19
(or any required post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
b) Accountants’ Comfort Letters. On the date hereof, the Representatives shall have received
from each of Ernst & Young LLP, independent registered public accountants for the Company, and
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP, public accountants for the Company, a letter dated the date hereof
addressed to the Underwriters, in form and substance satisfactory to the Representatives with
respect to the audited and unaudited financial statements and certain financial information
contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
c) Bring-down Comfort Letters. On the Closing Date, the Representatives shall have received
from each of Ernst & Young LLP and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP, independent public and public
accountants, respectively, for the Company, a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified
date referred to therein for the carrying out of procedures shall be no more than three business
days prior to the Closing Date.
d) No Objection. If the Registration Statement and/or the offering of the Notes has been
filed with FINRA for review, FINRA shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
e) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (b) of this Section 5 which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company, and the
favorable opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated as of such
Closing Date, each in the form of which is attached hereto as Exhibit A and Exhibit B,
respectively. Such counsel may also state that, insofar as such opinion involves
20
factual matters, they have relied, to the extent they deem proper, upon certificates of the
officers of the Company and certificates of public officials.
g) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the favorable opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the
Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Underwriters.
h) Officers’ Certificate. On the Closing Date, the Representative shall have received a
written certificate executed by the Chairman of the Board or the Chief Executive Officer or a
Senior Vice President of the Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) the representations, warranties and covenants of the Company set forth in
Section 1 of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
i) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5, 10 or 11, or if the sale to the Underwriters of the
Notes on the Closing Date is not consummated because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon
21
demand for all out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and the Underwriters in connection with the proposed purchase and the offering and
sale of the Notes, including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers, employees and agents, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
and to reimburse each Underwriter and each such director, officer, employee, agent and controlling
person for any and all expenses (including the reasonable fees and disbursements of counsel chosen
by the Representatives) as such expenses are reasonably incurred by such Underwriter or such director, officer,
employee, agent or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto).
The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that
the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, or at common law or
22
otherwise (including in settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement,
or any amendment thereto, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any
untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto), in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for use therein; and to
reimburse the Company, or any such director, officer or controlling person for any legal and other
expense reasonably incurred by the Company, or any such director, officer or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the only information
furnished to the Company by any Underwriter through the Representatives expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) are the
statements set forth in the third paragraph, the third sentence of
the fourth paragraph, and the fifth and sixth paragraphs in the
section captioned “Underwriting” in the Prospectus. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may
otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to employ its own counsel in any
such action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably
23
concluded that either (x) there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party or such affiliate of the
indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying
party or such affiliate of the indemnifying party (it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in
addition to a single firm of local counsel) for all such indemnified parties, which firm shall be
designated in writing by the Representatives and that all such reasonable fees and expenses shall
be reimbursed as they are incurred). Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless the indemnified party shall
have employed separate counsel in accordance with the proviso to the next preceding sentence, in
which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying
party.
(d) Settlements. The indemnifying party under this Section 8 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 judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative
24
benefits referred to in clause (i) above but also the relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by
the Company, and the total underwriting discount received by the Underwriters, in each case as set
forth on the front cover page of the Prospectus bear to the aggregate initial public offering price
of the Notes as set forth on such cover. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, on the one hand,
or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 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 which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. 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 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company.
Section 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 Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on
25
such date, the other Underwriters shall be obligated, severally, in the proportion to the
aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A
bears to the aggregate principal amount of such Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes 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 such
Notes and the aggregate principal amount of such Notes with respect to which such default occurs
exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the purchase of such Notes 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 Sections 4, 6, 8, 9 and 17 shall at all
times be effective and shall survive such termination. In any such case, either the
Representatives or the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days in order that the required changes, if any, 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.
Section 11. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by
the Commission or the New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock exchanges by the
Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal
or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity involving the United States, or any change in
the United States or international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international political, financial
or economic conditions, as in the judgment of the Representatives is material and adverse and makes
it impracticable or inadvisable to market the Notes in the manner and on the terms described in the
Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in
the judgment of the Representatives there shall have occurred any Material Adverse Change; or (v)
there shall have occurred a material disruption in commercial banking or securities settlement or
clearance services. Any termination pursuant to this Section 11 shall be without liability of any
party to any other party except as provided in Sections 4 and 6 hereof, and provided further that
Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
Section 12. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length
26
commercial transaction between the Company, on the one hand, and the several Underwriters, on
the other hand, and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Company and that
the several Underwriters have no obligation to disclose any of such interests to the Company by
virtue of any advisory, agency or fiduciary relationship with the Company; and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
Section 13. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will
remain operative and in full force and effect, regardless of any (A) investigation, or statement as
to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of
the Company, or any person controlling the Company, as the case may be or (B) acceptance of the
Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes
sold hereunder and any termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Banc of America Securities LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: High Grade Debt Capital Markets Transaction Management/Legal
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: High Grade Debt Capital Markets Transaction Management/Legal
and
27
Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Transaction Management Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Transaction Management Group
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Investment Banking Division
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Investment Banking Division
with a copy to:
Squire, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to the Company:
RPM International Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
28
Sections 8 and 9, and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term “successors” shall not include any purchaser of the
Notes as such from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17.
(a) Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN THAT STATE.
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
29
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, RPM INTERNATIONAL INC. |
||||
| By: | /s/ P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President and Chief Administrative Officer |
|||
30
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
| BANC OF AMERICA SECURITIES LLC WACHOVIA CAPITAL MARKETS, LLC ▇▇▇▇▇▇▇, SACHS & CO. |
||||||
| Acting as Representatives of the several Underwriters named in the attached Schedule A. |
||||||
|
Banc of America Securities LLC |
||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| Wachovia Capital Markets, LLC |
||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
||||||
| By: | /s/ ▇▇▇▇▇▇▇, Sachs & Co. | |||||
| Name: | ||||||
| Title: | ||||||
31
SCHEDULE A
| Aggregate | ||||
| Principal | ||||
| Amount of | ||||
| Notes to be | ||||
| Underwriters | Purchased | |||
Banc of America Securities LLC |
$ | 80,000,000 | ||
Wachovia
Capital Markets, LLC |
80,000,000 | |||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
|
45,000,000 | |||
Credit
Suisse Securities (USA) LLC |
22,500,000 | |||
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
22,500,000 | |||
Total |
$ | 250,000,000 | ||
Sch-1
ANNEX I
Issuer Free Writing Prospectuses
Final
Term Sheet dated February 14, 2008
Annex-1
EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel of the Company
General Counsel of the Company
(i) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and has corporate power and
authority to own or lease, as the case may be, and operate its properties and to conduct its
business as described in the Disclosure Package and the Prospectus and to enter into and perform
its obligations under this Agreement; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each U.S. jurisdiction in which it owns or leases real
property or conducts business, except for such jurisdictions where the failure to so qualify or to
be in good standing would not, individually or in the aggregate, result in a Material Adverse
Change.
(ii) Each of the Company’s Significant Subsidiaries has been duly incorporated or formed and are
validly existing as a corporation, limited liability company, partnership or other legal entity in
good standing under the laws of the jurisdiction of its incorporation or formation, and each has
corporate, limited liability company, partnership or other power and authority to own or lease, as
the case may be, and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus; each Significant Subsidiary is duly qualified as a foreign
corporation, limited liability company, partnership or other entity to transact business and is in
good standing in each jurisdiction in which it owns or leases real property, except for such
jurisdictions where the failure to so qualify or to be in good standing would not, individually or
in the aggregate, result in a Material Adverse Change; all of the issued and outstanding shares of
capital stock or other equity interests of each Significant Subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable, except for directors’ qualifying shares and
third party interests in joint ventures in which the Company invests, and are owned by the Company,
directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(iii) To the best of my knowledge after due inquiry, and other than as set forth in the Disclosure
Package and the Prospectus, there are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company’s knowledge, threatened (i) against or affecting the Company
or any of its subsidiaries, (ii) which has as the subject thereof any officer or director of, or
property owned or leased by, the Company or any of its subsidiaries or (iii) relating to
environmental or discrimination matters related to the Company or its subsidiaries, where any such
action, suit or proceeding, if determined adversely, could, individually or in the aggregate,
result in a Material Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement.
(iv) The Company’s execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not result in any Default under the
charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
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Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument that is required to be filed as an exhibit to the Company’s filings with the
Commission, and (iii) will not result in any violation of any statute, law, rule, regulation,
judgment, order or decree known to such counsel and applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its subsidiaries or any of its or
their properties. No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency is required for the
Company’s execution, delivery and performance of this Agreement or consummation of the transactions
contemplated hereby, by the Disclosure Package or by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under the Securities Act, the
Trust Indenture Act, or as may be required under applicable state securities or blue sky laws and
from FINRA, as to which I express no opinion.
(v) To the best of my knowledge after due inquiry, and other than as set forth in the Disclosure
Package and the Prospectus, the Company and each Significant Subsidiary possess such valid and
current certificates, authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor any Significant
Subsidiary has received any notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization, permit, license, approval, consent or
other authorization which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a Material Adverse Change.
Nothing has come to my attention that would lead me to believe that (i) the Registration
Statement or any amendment thereto, including the information required under Rule 430B of the
Securities Act (except for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to which I need make no
statement), as of its original effective date and at each deemed effective date with respect to the
Underwriter pursuant to Rule 430B(f)(2) of the Securities Act, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Disclosure Package (except for financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom, as to which I need make no statement), as of the Initial Sale Time, contained
any untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of circumstances under which they were made, not
misleading or (iii) the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom, as to which I need make no statement), as of the date of the Prospectus, as of
the date of any such amended or supplemented prospectus or as of the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
A-2
EXHIBIT B
Form of Opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP
Counsel for the Company
Counsel for the Company
(i) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iv) The Notes are in the form contemplated by the Indenture, have been duly authorized and
executed and, when authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price as specified in this Agreement, will constitute
valid and binding obligations of the Company, enforceable in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law), and will be entitled to the benefits of the Indenture.
(v) The Notes and the Indenture conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Prospectus.
(vi) The Registration Statement is an “automatic shelf registration statement,” as defined in Rule
405 of the Securities Act, that automatically became effective not more than three years prior to
the Execution Time; the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the automatic shelf registration
form.
(vii) The Registration Statement, including without limitation the Rule 430B Information, the
Prospectus, excluding the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (including without limitation
each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the
Securities Act), other than the financial statements and supporting schedules included therein or
omitted therefrom, and the Trustee’s Statement of Eligibility on Form T-1
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(the “Form T-1”), as to which we need express no opinion, complied as to form in all material
respects with the requirements of the Securities Act.
(viii) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus (i) at the time they were or hereafter are
filed with the Commission, complied or will comply in all material respects with the requirements
of the Exchange Act.
(ix) The statements in each of the Preliminary Prospectus and the Prospectus under the captions
“Description of Notes,” “Description of Capital Stock,” “Description of Debt Securities,”
“Description of Other Securities,” and “Certain U.S. Federal Income Tax Considerations” in each
case insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred
to therein.
(x) The Company’s execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not result in any Default under the
charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument
that is required to be filed as an exhibit to the Company’s filings with the Commission, and (iii)
will not result in any violation of any U.S. federal or Ohio statute, law, rule or regulation, or,
to our knowledge, any judgment, order or decree applicable to the Company or any of its
subsidiaries of any U.S. federal or state court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of
its subsidiaries or any of its or their properties. No consent, approval, authorization or other
order of, or registration or filing with, any U.S. federal or state court or other U.S. or state
governmental or regulatory authority or agency is required for the Company’s execution, delivery
and performance of this Agreement or consummation of the transactions contemplated hereby, by the
Disclosure Package or by the Prospectus, except such as have been obtained or made by the Company
and are in full force and effect under the Securities Act, the Trust Indenture Act, and except for
such as may be required under applicable state securities or blue sky laws and from FINRA, as to
which we express no opinion.
(xiii) Neither the Company nor any of its subsidiaries is, nor after receipt of payment for the
Notes and the application of the proceeds thereof as contemplated under the caption “Use of
Proceeds” in the Preliminary Prospectus and the Prospectus will be, an “investment company” or an
entity “controlled” by an “investment company,” as such terms are defined in the Investment Company
Act.
Nothing has come to our attention that would lead us to believe that (i) the Registration
Statement or any amendment thereto, including the information required under Rule 430B of the
Securities Act (except for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to which we need
A-4
make no statement), as of its original effective date and at each deemed effective date with
respect to the Underwriter pursuant to Rule 430B(f)(2) of the Securities Act, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Disclosure Package (except for
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), as of the Initial Sale Time,
contained any untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of circumstances under which they were made,
not misleading or (iii) the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom, as to which we need make no statement), as of the date of the Prospectus, as of
the date of any such amended or supplemented prospectus or as of the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
A-5
EXHIBIT C
RPM INTERNATIONAL INC.
Form of Final Term Sheet
February 14, 2008
Issuer:
|
RPM International Inc. | |
Security Type:
|
Senior Unsecured Notes | |
Ratings:
|
Baa3 (Stable) / BBB- (Positive) / BBB- (Stable) | |
Size:
|
$250,000,000.00 | |
Trade Date:
|
February 14, 2008 | |
Settlement Date:
|
February 20, 2008 | |
Maturity:
|
February 15, 2018 | |
Coupon (Interest Rate):
|
6.500% | |
Interest Payment Dates:
|
February 15 and August 15 of each year, beginning on August 15, 2008 | |
Price to Public:
|
98.526% | |
Yield to Maturity:
|
6.705% | |
Benchmark Treasury:
|
UST 3.500% 02/15/2018 | |
Spread to Benchmark Treasury:
|
T + 285 bps | |
Benchmark Treasury Yield:
|
3.855% | |
Make Whole Call:
|
T + 45 bps | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Wachovia Capital Markets, LLC ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
or e-mailing Banc of America Securities LLC at 1-800-294-1322 or
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Wachovia
Capital Markets, LLC at ▇-▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at
▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇-▇▇@▇▇.▇▇▇▇▇.▇▇.▇▇▇.
▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇-▇▇@▇▇.▇▇▇▇▇.▇▇.▇▇▇.
B-1