TENNECO INC. Shares of Common Stock Underwriting Agreement
Exhibit 1.1
Shares of Common Stock
Underwriting Agreement
November 18, 2009
X.X. Xxxxxx Securities Inc.
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Tenneco Inc., a Delaware corporation (the “Company”), proposes to issue and sell, upon
the terms and subject to the conditions set forth herein, to the several Underwriters listed in
Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of 12,000,000 shares and, at the option of the
Underwriters, up to an additional 1,800,000 shares, of Common Stock, par value $0.01 per share (the
“Stock”) of the Company. The aggregate of 12,000,000 shares to be sold by the Company is
herein called the “Underwritten Shares” and the aggregate of 1,800,000 additional shares to
be sold by the Company is herein called the “Option Shares”. The Underwritten Shares and
the Option Shares are herein referred to as the “Shares”.
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-159305), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each
prospectus included in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430A Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Shares. If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule
462 Registration Statement”), then any reference herein to the term “Registration Statement” shall
be deemed
to include such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein.
At or prior to the Applicable Time (as defined below), the Company had prepared a Preliminary
Prospectus dated November 17, 2009 (collectively with the information set forth on Annex C hereto,
the “Pricing Disclosure Package”).
“Applicable Time” means 5:30 P.M., New York City time, on November 18, 2009.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Shares to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company at a purchase price per share of $15.675 (the “Purchase
Price”) the number of Underwritten Shares (to be adjusted by you so as to eliminate fractional
shares) set forth opposite their respective names in Schedule I hereto.
In addition, the Company agrees to sell the Option Shares to the several Underwriters and the
Underwriters shall have the option to purchase at their election up to the full amount of the
Option Shares at the Purchase Price. The Underwriters, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated, shall have the
option to purchase, severally and not jointly, from the Company at the Purchase Price that portion
of the number of Option Shares as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying such number of Option Shares
by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter
is entitled to purchase and the denominator of which is the maximum number of Option Shares which
all of the Underwriters are entitled to purchase hereunder.
The Underwriters may exercise the option to purchase Option Shares at any time and from time
to time on or before the thirtieth day following the date of this Agreement, by written notice from
the Representatives to the Company. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and time when the Option Shares are
to be delivered and paid for, which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date nor later than the tenth full
business day (as hereinafter defined) after the date of such notice (unless such time and date are
postponed in accordance with the provisions of Section 11 hereof). Any such notice shall be given
at least three business days prior to the date and time of delivery specified therein; provided
that only one business days notice shall be required in connection with a concurrent settlement of
Option Shares with settlement of the Underwritten Shares.
(b) As soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, the Underwriters propose to offer the Shares on the terms set forth
in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Shares to or
-2-
through any affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives (i) in the case of the Underwritten
Shares, at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 at 10:00 A.M., New York City time, on November 24, 2009, or at such other time or place on
the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing or (ii) in the case of the Option Shares,
on the date and at the time and place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and date of such payment for the
Underwritten Shares are referred to herein as the “Closing Date,” and the time and date for such
payment for the Option Shares, if other than the Closing Date, are herein referred to as the
“Additional Closing Date”.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in such names and in such
denominations as the Representatives shall request in writing not later than two full business days
prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of the Shares duly paid by the Company.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Shares contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
-3-
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date, as the case
may be, will not, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in such Pricing Disclosure Package, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(c) No Issuer Free Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not prepared,
used, authorized, approved or referred to and will not prepare, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives an “Issuer Free Writing
Prospectus”) other than any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any “road show”
(as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing
Prospectus. For the avoidance of doubt, the Company will not prepare, use, authorize,
approve or refer to an Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement was declared
effective by the Commission. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act against the Company or related to the offering of the
Shares has been initiated or threatened by the Commission; as of the applicable effective
date of the Registration Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will comply in all
material respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of
the Prospectus and any amendment or supplement thereto and as of the Closing Date and as of
the Additional Closing Date, as the case may be, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents included or incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were
filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact
or omitted to
state a material fact necessary to make the statements therein, in the light of the
circumstances
-4-
under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Prospectus or the Pricing
Disclosure Package, when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) Financial Statements. The historical financial statements (and the related notes
thereto) included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and present fairly
the financial position of the Company and its subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified;
such historical financial statements have been prepared in conformity with the United States
generally accepted accounting principles applied on a consistent basis throughout the
periods covered thereby (subject, in the case of interim historical financial statements, to
all normal, recurring year-end adjustments); and the other financial information included or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus has been derived from the accounting records of the Company and its
consolidated subsidiaries and presents fairly the information shown thereby.
(g) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (i) there has not been any material decrease
in the authorized or issued and outstanding capital stock or any increase in long-term debt
of the Company or any of its subsidiaries, or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of its capital
stock, or any material adverse change, or any development that could reasonably be expected
to involve a prospective material adverse change, in the business, properties, financial
position or results of operations of the Company and its subsidiaries taken as a whole; (ii)
except in the ordinary course of business, neither the Company nor any of its subsidiaries
has entered into any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(h) Organization and Good Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have all power
and authority (corporate and other) necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the aggregate, have
a material adverse effect on the business, properties, financial position, results of
operations or business prospects of the
Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
The subsidiaries listed in Schedule 2 to this Agreement are the only significant
subsidiaries of the Company.
-5-
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable and the issuance
thereof by the Company is not subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus,
including, without limitation, the historical consolidated financial statements of the
Company incorporated by reference therein, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, at the option of the holder, any shares of capital
stock or other equity interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options (except for rights to
acquire Common Stock issued in the ordinary course of business pursuant to the Company’s
equity incentive plans since September 30, 2009); the capital stock of the Company conforms
in all material respects to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. Except in the case of any foreign
subsidiary, for directors’ qualifying shares and equity interests held by any other party to
a joint venture or similar arrangement governing such foreign subsidiary, all the
outstanding shares of capital stock or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party, except as disclosed in or contemplated by the Pricing Disclosure Package and
the Prospectus.
(j) Stock Options. Except as disclosed in the documents filed by the Company with the
Commission, with respect to the stock options (the “Stock Options”) granted pursuant to the
stock-based compensation plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under
Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was by its terms to be
effective (the “Grant Date”) by all necessary corporate action, including, as applicable,
approval by the board of directors of the Company (or a duly constituted and authorized
committee thereof) and any required stockholder approval by the necessary number of votes or
written consents, and the award agreement governing such grant (if any) was duly executed
and delivered by each party thereto, (iii) each such grant was 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, and (iv) each such grant was properly
accounted for in accordance with GAAP in the financial statements (including the related
notes) of the Company and disclosed in the Company’s filings with the Commission in
accordance with the Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or practice of the Company of
granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with,
the release or other public announcement of material information regarding the Company or
its subsidiaries or their results of operations or prospects.
(k) Due Authorization. The Company has all requisite corporate right, power and
authority to execute and deliver this Agreement and to perform its obligations hereunder;
and all corporate action required to be taken for the due and proper authorization,
execution and delivery of this Agreement by the Company and the consummation of the
transactions contemplated hereby has been duly and validly taken.
-6-
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The Shares. The Shares to be issued and sold by the Company hereunder have been
duly authorized by the Company and, when issued and delivered and paid for as provided
herein, will be duly and validly issued and will be fully paid and nonassessable and will
conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and the issuance of the Shares by the Company is not subject to
any preemptive or similar rights.
(n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance by them of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority applicable to them, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares, the compliance by the Company with the terms
of this Agreement and the consummation by it of the transactions contemplated by this
Agreement, does not and will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) subject to obtaining the consents set forth in
Section 3(p) below, result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority
applicable to them, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, filing, order,
registration or qualification of or with any court or arbitrator or governmental or
regulatory authority is or was (at the time thereof) required for the execution, delivery
and performance by the Company of this Agreement, the issuance and sale of the Shares, the
compliance by the Company with the terms this of Agreement and the consummation of the
transactions contemplated by this
Agreement, except for consents obtained in connection with registration of the Shares
under the Securities Act and such consents, approvals, authorizations, orders and
registrations or qualifications (i) as may be required by the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters, (ii) the failure to obtain
which would not have a Material Adverse Effect or materially adversely affect the
consummation of the transactions contemplated by this
-7-
Agreement, (iii) from (a) FINRA or (b)
the Chicago Stock Exchange and (iv) such consents required to be obtained on or prior to the
Closing Date pursuant to Section 6(k) hereof.
(q) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
actions, suits or proceedings pending, and to the Company’s best knowledge there are no
legal, governmental or regulatory investigations pending, to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect or could interfere with or adversely affect the right, power or
ability of the Company to perform its obligations under this Agreement or to consummate the
transactions contemplated by the Registration Statement, the Pricing Disclosure Package and
the Prospectus; to the best knowledge of the Company, no such investigations, actions, suits
or proceedings are threatened or contemplated by any governmental or regulatory authority or
threatened by others and (i) there are no pending legal, governmental or regulatory actions,
suits or proceedings that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus that are not so
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and (ii) there are no material statutes, regulations, contracts or other documents that are
required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus that are not so filed or
described.
(r) Independent Accountants. To the Company’s best knowledge, Deloitte & Touche LLP,
who have certified certain financial statements of the Company and its subsidiaries, are
independent certified public accountants with respect to the Company and its subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants and its interpretations and rulings thereunder
(“Independent Accountants”).
(s) Title to Real and Personal Property. The Company and its subsidiaries have good
and marketable title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property that are material to the respective businesses of the
Company and its subsidiaries, in each case free and clear of all liens and defects and
imperfections of title except those liens which (x) do not materially interfere with the use
made and proposed to be made of such property by the Company and its subsidiaries, (y) could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect or (z) are disclosed in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(t) Title to Intellectual Property. Except as could not reasonably be expected to have
a Material Adverse Effect, (i) the Company and its subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (“Intellectual Property”) necessary
for the conduct of their respective businesses, (ii)
the conduct of their respective businesses does not conflict in any material respect
with any such rights of others, and (iii) the Company and its subsidiaries have not received
any notice of any claim of infringement of or conflict with any such rights of others.
(u) Investment Company Act. Neither the Company nor any of its subsidiaries is, and
after giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus,
-8-
none of them will be, an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder (collectively,
“Investment Company Act”).
(v) Taxes. Each of the Company and its subsidiaries has filed all tax returns required
to be filed through the date hereof, which filed returns are complete and correct in all
material respects and neither the Company nor any of its subsidiaries is in default in the
payment of any taxes which were due and payable pursuant to said returns or any due and
payable assessments with respect thereto, except (i) as disclosed in the Registration
Statement, the Pricing Disclosure Package and Prospectus or (ii) for such failures to file
or defaults in payment of a character which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(w) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the Registration Statement, the
Pricing Disclosure Package and Prospectus, except where the failure to possess or make the
same would not, individually or in the aggregate, have a Material Adverse Effect. Except as
described in the Registration Statement, the Pricing Disclosure Package and Prospectus,
neither the Company nor any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization will not be renewed in
the ordinary course.
(x) No Labor Disputes. No material labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the best knowledge of the Company, is
contemplated or threatened.
(y) Compliance With and Liability Under Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions, judgments, decrees orders and the common law
relating to pollution and the protection of the environment, natural resources and human
health and safety, including those relating to the Release or threat of Release of Hazardous
Materials (collectively, “Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) have not received notice of
any actual or potential liability under, or actual or potential violation of, any
Environmental Laws, (iv) are not conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to any Environmental Law at
any location, except in the case of each of (i), (ii), (iii) and (iv) above for any such
matter as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect ,or is specifically disclosed in the Registration Statement, the
Pricing Disclosure Package
and Prospectus. There has been no storage, treatment or Release of Hazardous Materials
by the Company or any of its subsidiaries, or to the knowledge of the Company and its
Subsidiaries by any other person, at, on ,under or from any property or facility now or
previously owned, operated or leased by the Company or any of its subsidiaries, in violation
of any Environmental Law or in a manner or amount that could reasonably be expected to
result in liability under any Environmental Law, expect for any violation or liability which
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. “Hazardous Material” means any material, chemical, substance, waste,
pollutant, contaminant, compound, mixture or constituent
-9-
thereof, in any form or amount,
regulated or which can give rise to liability under any Environmental Law. “Release” means
any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in,
into or through the environment, or in, into, from or through any building, facility or
structure.
(z) Compliance With ERISA. Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
that is maintained, administered or contributed to by the Company or any of its affiliates
for employees or former employees of the Company and its affiliates has been maintained in
all material respects in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the “Code”); and no prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any such plan excluding transactions effected pursuant to a statutory or administrative
exemption. Each of the Company and its subsidiaries has fulfilled its obligations, if any,
under the minimum funding standards of Section 302 of ERISA and Section 412 of the Code.
The Company and its subsidiaries have not incurred, and are not reasonably expected to
incur, any material liability to the Pension Benefit Guaranty Corporation (other than for
payment of premiums in the ordinary course) or to any such employee benefit plan under Title
IV of ERISA (other than for payment of contributions in the ordinary course).
(aa) Disclosure Controls. The Company and its subsidiaries maintain an effective
system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(bb) Accounting Controls. The Company and its subsidiaries maintain systems of
internal accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(cc) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business interruption
insurance, which insurance is in amounts and insures against such losses and risks as are
customary for a similarly situated company in the Company’s industry; and neither the
Company nor any of its subsidiaries has (i) received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or necessary to be
made in order to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
-10-
(dd) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries has: (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(ee) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.
(ff) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not, directly or indirectly, use the proceeds of the offering of the Shares
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(gg) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against any of them or any Underwriter for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(hh) No Registration Rights. No person has the right to require the Company or any of
its subsidiaries to register any securities for sale under the Securities Act by reason of
the filing of the Registration Statement with the Commission or the issuance and sale of the
Shares.
(ii) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(jj) Margin Rules. Neither the issuance, sale and delivery of the Shares nor the
application of the proceeds thereof by the Company as described in the Registration
Statement and Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(kk) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Pricing Disclosure Package and Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
-11-
(ll) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package
and Prospectus is not based on or derived from sources that are reliable and accurate in all
material respects.
(mm) Xxxxxxxx-Xxxxx Act. The Company is, in all material respects, in compliance with,
and to the knowledge of the Company, there has been no failure by any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with
any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection with the offering or
sale of the Shares; and will furnish copies of the Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives (to the extent requested by them), two signed copies of the Registration
Statement as originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and documents incorporated by reference therein; and
(ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto (without exhibits) (to the extent requested by such
Underwriter) and (B) during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein (but excluding exhibits) as the Representatives may
reasonably request. As used herein, the term “Prospectus Delivery Period” means such period
of time after the first date of the public offering of the Shares as in the opinion of
counsel for the Underwriters a prospectus relating to the Shares is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements. In each case until the expiration of the Prospective
Delivery Period, before making or distributing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the time that the
Registration Statement becomes effective, the Company will furnish to the Representatives
and counsel for the Underwriters a copy of the proposed amendment or supplement or document
to be incorporated by reference therein for review, and will not distribute or cause to be
distributed any such proposed amendment or supplement or file any such document with the
Commission to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when the Registration Statement has become
-12-
effective; (ii) when any amendment to the Registration Statement has been filed or becomes
effective; (iii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any comments
from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (v) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the
Prospectus or, if the Company has knowledge of it, the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the
occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectus or the Pricing Disclosure Package as then amended or supplemented would include
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when the
Prospectus or the Pricing Disclosure Package is delivered to a purchaser, not misleading;
and (vii) of the receipt by the Company of any notice with respect to any suspension of the
qualification of the Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of
the Shares and, if any such order is issued, will use its reasonable best efforts to obtain
as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If at any time during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters such amendments or supplements to the Prospectus (or any
document to be filed with the Commission and incorporated by reference therein) as may be
necessary so that the statements in the Prospectus as so amended or supplemented (or
including such document to be incorporated by reference therein) will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the Pricing
Disclosure Package as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the Pricing
Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Pricing Disclosure Package to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriters
such amendments or supplements to the Pricing Disclosure Package as may be necessary so that
the statements in the Pricing Disclosure Package as so amended or supplemented will not, in
the light of the circumstances existing when the Pricing Disclosure Package is delivered to
a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will cooperate with the Underwriters to qualify
the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as
-13-
the Representatives shall reasonably request and will continue such qualifications in effect
so long as required for the distribution of the Shares; provided that the Company shall not
be required to (i) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required to so qualify,
(ii) file any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security
holders and the Representatives as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158)
of the Registration Statement
(h) Clear Market. During the period from the date hereof through and including the
date that is 90 days after the date hereof, the Company will not, without the prior written
consent of X.X. Xxxxxx Securities Inc., (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or file with the Securities and Exchange Commission a
registration statement under the Securities Act relating to, any shares of Stock or any
securities convertible into or exercisable or exchangeable for Stock, or publicly disclose
the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in cash or
otherwise, without the prior written consent of X.X. Xxxxxx Securities Inc., other than (A)
the Shares to be sold hereunder, (B) any shares of Stock of the Company issued upon the
exercise of options or settlement of other awards granted under the Company’s existing stock
option or equity incentive plans or the option granted by the Company in favor of Xxxxx
Xxxxxxx & Co. and (C) the granting of awards under the Company’s existing stock option, and
equity incentive plans in amounts not to exceed the amount described in the Prospectus as
available for grant under those plans. Notwithstanding the foregoing, if (1) during the last
17 days of the 90-day restricted period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of
the 90-day restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 90-day period, the restrictions
imposed by this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or
material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Use of proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(k) Exchange Listing. The Company will use its reasonable best efforts to list,
subject to notice of issuance, the Shares on the New York Stock Exchange (the “Exchange”).
-14-
(l) Reports. For a period of one year following the Closing Date, the Company will
furnish to the Representatives, as soon as they are available, copies of all reports or
other communications (financial or other) furnished to holders of the Shares, and copies of
any reports and financial statements furnished to or filed with the Commission or any
national securities exchange or automatic quotation system; provided,
however in no event shall the Company be required to furnish copies of any such
documents which are filed and publicly accessible via the Commission’s Electronic Data
Gathering, Analysis, and Retrieval system.
(m) No Issuer Free Writing Prospectus. The Company will not prepare, use, authorize,
approve or refer to an Issuer Free Writing Prospectus.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the planning for use
of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in the Preliminary Prospectus or (ii) any
“road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer
Free Writing Prospectus.
(b) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Registration Statement (or if a
post-effective amendment thereto is required to be filed under the Securities Act, such
post-effective amendment) shall have become effective, and the Representatives shall have
received notice thereof, not later than 5:00 P.M., New York City time, on the date hereof;
no order suspending the effectiveness of the Registration Statement shall be in effect, and
no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be
pending before or threatened by the Commission; the Prospectus shall have been timely filed
with the Commission
under the Securities Act and in accordance with Section 4(a) hereof; and all requests
by the Commission for additional information shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing
Date or the Additional Closing Date, as the case may be; and the statements of the Company
and its officers made in any certificates delivered pursuant to this Agreement shall be true
and correct on and as of the Closing Date or the Additional Closing Date, as the case may
be.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the
execution and delivery of this Agreement, (i) no downgrading shall have occurred in the
-15-
rating accorded any debt securities or preferred stock issued or guaranteed by the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization”,
as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act; and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of any
debt securities or preferred stock issued or guaranteed by the Company (other than an
announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, no event or condition of a type described in Section 3(g) hereof shall have
occurred or shall exist, which event or condition is not described in the Pricing Disclosure
Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto or any document filed with the Commission after the date
hereof and incorporated by reference therein) and the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure
Package and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate of an
executive officer of the Company who has knowledge of the Company’s financial matters and is
satisfactory to the Representatives (i) confirming that such officer has carefully reviewed
the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the
best knowledge of such officer, the representations set forth in Sections 3(b) and (d)
hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has complied with
all agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may
be, and (iii) to the effect set forth in paragraph (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the
Additional Closing Date, as the case may be, Deloitte & Touche LLP shall have furnished to
the Representatives, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in the form and substance consistent
with drafts of such letters previously provided to the Representatives by Deloitte & Touche
LLP prior to the date hereof; provided that the letter delivered on the Closing Date or the
Additional Closing Date, as the case may be, shall use a “cut-off” date no more than three
business days prior to the Closing Date or the Additional Closing Date, as the case may be.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxx Xxxxx LLP, counsel
for the Company, shall have furnished to the Representatives, at the request of the Company,
their written opinion, dated the Closing Date or the Additional Closing Date, as the case
may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives
shall have received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably request,
and such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
-16-
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and
no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent
the issuance or sale of the Shares.
(j) Good Standing. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and its subsidiaries identified on Schedule 3 hereto in their
respective jurisdictions of organization and their good standing in such other jurisdictions
as the Representatives may reasonably request, in each case in writing or any standard form
of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
(l) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Annex B hereto, between you and the officers and directors of the Company (other than Xxxxx
Xxxxxxx) named in the Prospectus under “Management” relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered to you on or before
the date hereof, shall be full force and effect on the Closing Date or the Additional
Closing Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
arising out of, or based on, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Pricing
Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended),
or caused by any omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are
based upon,
-17-
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use therein, it
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Pricing Disclosure Package,
it being understood and agreed upon that the only such information furnished by any Underwriter
consists of the following information in the Prospectus furnished on behalf of each Underwriter:
the information contained in the sixth paragraph, the thirteenth paragraph and the first sentence
of the fourteenth paragraph of the section entitled “Underwriting”.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have under this
Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified
Person otherwise than under this Section 7. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable
fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by the Representatives and any such separate
firm for the Company and any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying
-18-
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment to the extent provided therein or herein. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for reasonable fees and expenses of counsel as contemplated
by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 60 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Shares and
the total discounts and commissions received by the Underwriters in connection therewith, as
provided in this Agreement, bear to the aggregate offering price of the Shares. The relative fault
of the Company on the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total discounts and commissions received
by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty
-19-
of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to
this Section 7 are several in proportion to their respective purchase obligations hereunder and not
joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at
law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the case may be, (i) trading
generally shall have been suspended or materially limited on the New York Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium
on commercial banking activities shall have been declared by federal or New York State authorities;
or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, either within or outside the United States, that, in
the judgment of the Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this
Agreement, the Pricing Disclosure Package and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such
Shares by other persons satisfactory to the Company on the terms contained in this Agreement. If,
within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not
arrange for the purchase of such Shares, then the Company shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date or the Additional Closing Date, as the case may be, for up to five full
business days in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or
in any other document or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any such changes. As used
in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this
Section 10, purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the number of Shares that remain unpurchased on the Closing Date or the
Additional Closing Date, as the case may be, does not exceed one-eleventh of the total number of
Shares to be purchased by the Underwriters, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder plus such Underwriter’s pro rata share (based on the number of Shares that such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
-20-
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate principal amount of such Shares that remains unpurchased exceeds
or is equal to one-eleventh of the aggregate principal amount of all the Shares, or if the Company
shall not exercise the right described in paragraph (b) above, then this Agreement or, with respect
to any Additional Closing Date, the obligation of the Underwriters to purchase Shares on the
Additional Closing Date, as the case may be, shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall
be without liability on the part of the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Section 11 hereof and except that the provisions of
Section 7 and Section 10(d) hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any
taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Pricing
Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the costs of preparing, reproducing and distributing this
Agreement; (iv) the fees and expenses of the Company’s counsel (including local and special
counsel) and independent accountants; (v) the reasonable fees and expenses incurred in connection
with the registration or qualification and determination of eligibility for investment of the
Shares under the laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of a Blue Sky Memorandum (including the reasonable related
fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for
rating the Shares; (vii) the fees and expenses of any transfer agent and registrar; (viii) the cost
of preparing stock certificates; (ix) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, FINRA and (ix) all expenses incurred by the
Company in connection with any “road show” presentation to potential investors.
(b) If (i) the purchase and sale of the Shares hereunder is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not satisfied, (ii) this
Agreement is terminated pursuant to Section 9(ii), (iii) the Company for any reason fails to tender
the Shares for delivery to the Underwriters other than as a result of a breach of this Agreement by
the Underwriters or (iv) the Underwriters decline to purchase the Shares for any reason permitted
under this Agreement other than for termination of this Agreement under Section 9(i), (iii) and
(iv), the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and any
controlling persons referred to herein, the affiliates, officers and directors of each Underwriter,
and the officers and directors of the Company. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision
-21-
contained herein. No purchaser of Shares from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, and the Underwriters contained in this Agreement or made
by or on behalf of the Company, the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02 of Regulation S-X under the Exchange Act.
15. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken
by X.X. Xxxxxx Securities Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx
Securities Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated shall be binding upon the Underwriters and the Company may rely thereon without
independent investigation or verification thereof.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk; c/o Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000); Attention: General Counsel, with a copy to Deutsche
Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel and c/o
Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax:
(000) 000-0000); Attention: Syndicate Department with a copy to: Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000); Attention: ECM
Legal. Notices to the Company shall be given to them at Tenneco Inc., 000 Xxxxx Xxxxx Xxxxx, Xxxx
Xxxxxx, Xxxxxxxx 00000, (fax: (000) 000-0000); Attention: General Counsel.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
-22-
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement
-23-
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, TENNECO INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
Accepted: November 18, 2009
Accepted as of the date hereof:
X.X. Xxxxxx Securities Inc.
By: |
/s/ N. Goksu Yolac | |||
Deutsche Bank Securities Inc.
By: |
/s/ Xxxx Xxxxxx | |||
By: |
/s/ Xxxxx Xxxxxxx | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Incorporated
By: |
/s/ Xxxxxx XxxXxxxxx | |||
On behalf of each of the Underwriters
Schedule 1
| Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities Inc. |
3,600,000 | |||
Deutsche Bank Securities Inc. |
3,600,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
2,400,000 | |||
RBS Securities Inc. |
720,000 | |||
Citigroup Global Markets Inc. |
720,000 | |||
KeyBanc Capital Markets Inc. |
360,000 | |||
Commerzbank Capital Markets Corp. |
120,000 | |||
PNC Capital Markets LLC |
120,000 | |||
Scotia Capital (USA) Inc. |
120,000 | |||
BNY Mellon Capital Markets, LLC |
120,000 | |||
UniCredit Capital Markets, Inc. |
120,000 | |||
Total |
12,000,000 | |||
S-1-1
Schedule 2
Significant Subsidiaries
Tenneco Automotive Operating Company Inc.
Tenneco Global Holdings Inc.
TMC Texas Inc.
Tenneco International Holding Corp.
Tenneco Automotive Iberia S.A.
Tenneco International Luxembourg S.A.
Tenneco Deutschland Holdings Gmbh
Xxxxxx Limited (UK)
Autopartes Xxxxxx X.X. de C.V.
Tenneco Management (Europe) Ltd.
Xxxxxxxx Xxxxxx Gmbh
Xxxxxx Exhaust Technologies Pty. Ltd.
Tenneco Global Holdings Inc.
TMC Texas Inc.
Tenneco International Holding Corp.
Tenneco Automotive Iberia S.A.
Tenneco International Luxembourg S.A.
Tenneco Deutschland Holdings Gmbh
Xxxxxx Limited (UK)
Autopartes Xxxxxx X.X. de C.V.
Tenneco Management (Europe) Ltd.
Xxxxxxxx Xxxxxx Gmbh
Xxxxxx Exhaust Technologies Pty. Ltd.
S-2-1
Schedule 3
Tenneco Automotive Operating Company Inc.
|
Delaware | |
The Pullman Company
|
Delaware | |
Clevite Industries Inc.
|
Delaware | |
Tenneco Global Holdings Inc.
|
Delaware | |
TMC Texas Inc.
|
Delaware | |
Tenneco International Holding Corp.
|
Delaware |
S-3-1
ANNEX A
[Form of Opinion of Counsel for the Company]
November 24, 2009
The Underwriters party to the
Underwriting Agreement described below
(the “Underwriters”)
Underwriting Agreement described below
(the “Underwriters”)
Ladies and Gentlemen:
We have acted as special counsel to Tenneco Inc., a Delaware corporation (the
“Company”), in connection with the Underwriting Agreement, dated as of November 18, 2009,
among the Company and the Underwriters named therein (the “Underwriting Agreement”),
pursuant to which the Underwriters are purchasing 12,000,000 shares of the Company’s common stock,
par value $0.01 per share (the “Shares”). This opinion is being delivered pursuant to
Section 6(g) of the Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified to our satisfaction,
of such writings, corporate records, certificates of public officials and other instruments as we
have deemed necessary or appropriate as a basis for the opinions set forth herein, including,
without limitation, fully executed counterparts of the Underwriting Agreement.
We have also examined (i) the Registration Statement, (ii) the preliminary prospectus, dated
November 17, 2009, relating to the Shares, (iii) the final Prospectus, dated November 18, 2009,
relating to the Shares, (iv) the Restated Certificate of Incorporation of the Company, as amended
to date (the “Certificate of Incorporation”), and the By-Laws (the “By-Laws”), of
the Company, as amended to date, (v) certain resolutions of the Board of Directors and, as
applicable, committees of the Board of Directors of the Company relating to, among other things,
the execution and delivery of the Underwriting Agreement, and (vi) such other records and writings
as we have deemed necessary as a basis for the opinions set forth below.
In rendering the opinions expressed below, we have assumed, with your permission and without
independent investigation,
1. the valid existence, good standing in the jurisdiction of its organization and, where
appropriate, qualification as a foreign corporation, wherever such qualification is
necessary, of each party to the Underwriting Agreement (other than the Company);
2. the due authorization, execution and delivery of the Underwriting Agreement by each party
thereto (other than the Company);
3. other than with respect to the Company, the power and authority of each party to the
Underwriting Agreement to execute, deliver and perform the same, and that such execution,
delivery and performance does not conflict with, contravene, violate or constitute a default
under (A) such party’s articles of incorporation or association, bylaws or other
organizational documents, (B) any
A-1
lease, indenture, instrument or other agreement to which such party is subject or any
contractual or legal restriction having applicability to such party, (C) any rule, law or
regulation to which such party is subject or (D) any writ, order, judgment or decree of any
court or regulatory or governmental authority to which such party is subject or by which any
of its properties or assets are bound;
4. the authority of all persons signing the Underwriting Agreement on behalf of the parties
thereto (other than the Company);
5. that the Underwriting Agreement constitutes the legal, valid and binding obligation of
each party to such agreement (other than the Company) are enforceable against each such
party in accordance with its terms;
6. that the representations and warranties in the Underwriting Agreement and the information
on the schedules to the Underwriting Agreement regarding the jurisdiction of organization of
the Company and the Specified Subsidiaries (as defined below) are accurate and complete;
7. that there are no records, agreements or understandings between or among any of the
parties or beneficiaries of the Underwriting Agreement that would alter the agreements set
forth therein; and
8. that the last reported sale price of the Company’s common stock, during regular trading
hours on the New York Stock Exchange on November 17, 2009, immediately prior to the
announcement of the offering, was $15.94 per share.
We have also assumed the genuineness of all signatures, the authenticity of all writings,
certificates, instruments and records submitted to us as originals, the conformity to originals of
all such writings, certificates, instruments and records submitted to us as certified, conformed or
photostatic copies, the authenticity of the originals of such copies, and the truthfulness of all
statements of fact set forth therein. As to certain factual matters we have, to the extent deemed
appropriate by us (and with your permission and without any independent investigation or
verification), relied upon certificates of officers of the Company and the representations made by
the Company in the Underwriting Agreement. In addition, our opinion with respect to the matters
set forth in paragraph (a) below (other than with respect to the manner and timeliness of the
filing of the Prospectus pursuant to Rule 424(b) under the Securities Act) is based solely upon the
verbal confirmation, by telephone, of Xxxxxxxx Xxxxx, Corporate Finance division of the Commission,
that the Registration Statement has been declared effective under the Securities Act, and no stop
order under the Securities Act suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending, threatened or
contemplated. We have not examined the records of any governmental agency and have not performed a
docket search of any judicial body.
Whenever a statement is qualified by “to our knowledge” or a similar phrase, it is intended to
indicate that those attorneys at Xxxxx Xxxxx LLP who devote substantive legal attention with
respect to legal matters involving the Company and responsible for preparing this opinion, after
consultation with such other attorneys in the firm and review of such documents in our possession
as they considered appropriate, do not have current actual knowledge of the inaccuracy of such
statement. Except as expressly set forth herein, we have not undertaken any independent
investigation or inquiry to determine the existence or absence of such facts and no inference as to
our knowledge concerning such facts should be drawn from the fact that such representation has been
undertaken by us.
A-2
Based on the foregoing and subject to the limitations and assumptions set forth herein, and
having due regard for such legal considerations as we deem relevant, we are of the opinion that:
(a) The Registration Statement was declared effective under the Securities Act as of
May 29, 2009; any required filing of the Prospectus was filed with the Commission pursuant
to Rule 424(b) under the Securities Act has been made in the manner and within the time
period required by Rule 424(b); and no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose is pending or, to
the best of our knowledge, threatened by the Commission.
(b) The Registration Statement, the Preliminary Prospectus and the Prospectus (in each
case other than the financial statements and related notes, financial statement schedules
and other financial and accounting data and information therein, as to which we need express
no opinion) comply as to form in all material respects with the requirements of the
Securities Act.
(c) The Company and each of the subsidiaries of the Company listed on Schedule 1 hereto
(collectively, the “Specified Subsidiaries”) has been duly organized and is validly
existing and in good standing under the laws of its respective jurisdiction of organization,
is duly qualified to do business and is in good standing in each jurisdiction in which its
respective ownership or lease of property or the conduct of its respective businesses
requires such qualification, and has all corporate power and authority necessary to own or
hold its respective properties and to conduct the businesses in which its is engaged, except
where the failure to be so qualified or have such power or authority would not reasonably be
expected, individually or in the aggregate, to have a material adverse effect on the
business, properties, financial position or results of operations of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”).
(d) The Company has all requisite corporate right, power and authority to execute and
deliver the Underwriting Agreement and to perform its obligations thereunder and all
corporate action required to be taken for the due and proper authorization, execution and
delivery of the Underwriting Agreement by the Company and the consummation by it of the
transactions contemplated thereby has been duly and validly taken.
(e) The Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; the terms of the capital stock of the Company conform in all material
respects with respect to legal matters to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(f) The Shares have been duly authorized, and when delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, will be validly
issued, fully paid and non-assessable and the issuance of the Shares by the Company is not
subject to any preemptive rights under the Certificate of Incorporation, the By-Laws or the
General Corporation Law of the State of Delaware.
(g) The execution, delivery and performance by the Company of the Underwriting
Agreement, the issuance and sale of the Shares and compliance by the Company with the terms
of the Underwriting Agreement and the consummation by it of the transactions contemplated by
the Underwriting Agreement did not as of the date thereof and will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the
A-3
Company pursuant to, any Applicable Contract to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the Company is
subject (other than as contemplated by the Prospectus), (ii) result in any violation of the
provisions of the Certificate of Incorporation or By-Laws or (iii) subject to obtaining the
consents and approvals described in the next paragraph, result in the violation of any
Applicable Laws, except, in the case of clauses (i) and (iii) above, for any such conflict,
breach or violation that would not, individually or in the aggregate, have a Material
Adverse Effect (it being understood that we are expressing no opinion pursuant to this
paragraph as to compliance with disclosure requirements or prohibitions against fraud or
misrepresentations).
(h) No consent, approval, authorization, order, filing, registration or qualification
of or with any court or arbitrator or governmental or regulatory authority or, to our
knowledge, any other third party, is or was required for the execution, delivery and
performance by the Company of the Underwriting Agreement, the issuance and sale of the
Shares and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Underwriting Agreement, except for such consents,
approvals, authorizations, orders and registrations or qualifications as have been obtained
or may be required (i) under the federal securities laws (which are addressed by paragraph
(a) hereof) or under applicable state, foreign or local securities laws in connection with
the purchase and resale of the Shares and Option Shares by the Underwriters; (ii) by FINRA;
and (iii) by the Chicago Stock Exchange.
(i) To our knowledge, except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, (i) there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect and (ii) no such investigations, actions, suits or proceedings are
threatened or contemplated by any governmental or regulatory authority.
(j) The statements in the Registration Statement, the Pricing Disclosure Package and
the Prospectus under the heading “Certain Federal Income Tax Considerations”, to the extent
that they constitute summaries of matters of law or regulation or legal conclusions, fairly
summarize the matters described therein in all material respects.
(k) Neither the Company nor any of its subsidiaries is, and after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus none of them
will be, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(l) Neither the issuance, sale and delivery of the Shares nor the application of the
proceeds thereof by the Company as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
The foregoing opinions are strictly limited to the matters stated herein, and no other or more
extensive opinion is intended or implied or to be inferred beyond the matters expressly stated
herein.
A-4
For purposes of the opinions set forth above, (i) “Applicable Laws” means the General
Corporation Law of the State of Delaware and those laws, statutes, rules and regulations of the
State of New York and the federal laws of the United States of America, in each case which, in our
experience, are normally applicable to transactions of the type contemplated by the Underwriting
Agreement and would normally be applicable to general business corporations which are not engaged
in regulated business activities (other than state securities laws and antifraud laws), but without
our having made any special investigation concerning the applicability of any other law, statute,
rule or regulation and (ii) “Applicable Contracts” means the contracts identified on
Schedule 2 hereto.
Insofar as the opinions expressed in paragraph (g) require interpretation of certain
agreements other than the Underwriting Agreement, (i) we have assumed with your permission that all
courts of competent jurisdiction would enforce such agreements as written but would apply the
internal laws of the State of New York without giving effect to any choice of law provisions
contained therein or any choice of law principles which would result in application of the internal
laws of any other jurisdiction and (ii) to the extent that any questions of legality or legal
construction have arisen in connection with our review, we have applied the laws of the State of
New York in resolving such questions. We advise you that certain of such agreements may be
governed by other laws, that such laws may vary substantially from the law assumed to govern for
purposes of this opinion and that this opinion may not be relied upon as to whether or not a breach
or default would occur under the law actually governing any such agreement.
We have participated in conferences with representatives of the Company, with representatives
of the Company’s independent accountants and counsel, with representatives of the Underwriters and
with representatives of counsel to the Underwriters at which conferences the contents of the
Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were
discussed and, although we have not independently verified, we assume no responsibility for and are
not passing on the accuracy, completeness or fairness of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, nothing has come to our attention to cause us to believe
that the Registration Statement, at the time of its effective date (including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the
time of effectiveness), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading or that the
Prospectus or any amendment or supplement thereto as of its date and the Closing Date contains any
untrue statement of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and related notes, financial statement schedules
and other financial and accounting data and related information or reports on the effectiveness of
internal control over financial reporting contained or incorporated by reference therein, or
omitted therefrom, in each case as to which we need express no belief).
The opinions set forth above (other than the statement set forth in the immediately preceding
paragraph) are subject to the following qualifications:
| 1. | Our opinions expressed herein are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States, and we do not express any opinion concerning any other law. With respect to any matters concerning the General Corporations Law of the State of Delaware involved in the opinions set forth above, we draw your attention to the fact that we are not admitted to practice law in the State of Delaware and are not experts in the law of such jurisdiction, and that any such opinions concerning the General Corporations Law of the State of |
A-5
| Delaware are based upon our reasonable familiarity with such laws and as a result of our prior involvement in transactions concerning such laws. | |||
| 2. | Our opinions above are subject to the effect of any applicable bankruptcy, insolvency, fraudulent transfer, equitable subordination, reorganization, readjustment of debt, moratorium, or similar laws relating to or affecting creditors’ rights generally. | ||
| 3. | Our opinions above are further subject to the effect of general principles of equity, including, without limitation, the possible unavailability of specific performance, injunctive relief or any other equitable remedy and concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law) and, in certain circumstances, considerations of public policy. | ||
| 4. | We express no opinion as to: |
| a. | compliance with, or any governmental or regulatory filing, approval, authorization, license or consent required by or under any (a) federal or state environmental law, (b) federal or state antitrust law, (c) federal or state taxation law, (d) federal or state worker health or safety, zoning or permitting or land use matter, (e) patent, trademark, or copyright law, rule or regulation, (f) statutory or other requirement relating to the disposition of hazardous waste or environmental protection, (g) federal or state receivership or conservatorship law, (h) antifraud provisions under any federal or state securities, (i) federal or state labor or employment law, (j) federal or state employee benefits or pension law, (k) zoning, health, safety, building, environmental, permitting, land use or subdivision law, ordinance, code, rule or regulation, or (l) labor, pension and employee benefit law, rule or regulation; and | ||
| b. | (2) the enforceability of any provision of the Underwriting Agreement. |
A-6
ANNEX B
FORM OF LOCK-UP AGREEMENT
October 29, 2009
X.X. XXXXXX SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
DEUTSCHE BANK SECURITIES INC.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
DEUTSCHE BANK SECURITIES INC.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
| Re: | TENNECO INC. — Public Offering |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Tenneco Inc., a
Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by
the several Underwriters named in Schedule I to the Underwriting Agreement (the “Underwriters”), of
common stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc. on behalf of the Underwriters, the undersigned will not, during the period ending
90 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”),
(1) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock, $0.01 per share par value, of the Company (the “Common Stock”) or any securities convertible
into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock
which may be deemed to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may be issued upon
exercise of a stock option or warrant) or (2) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise; except in each case for (a)
withholding of Common Stock in connection with the vesting of restricted stock held by the
undersigned as of the date hereof or “cashless exercises” of options to purchase Common Stock held
by the undersigned as of the date hereof; (b) transactions in connection with a termination of the
undersigned’s employment by, or service to, the
A-1
Company or any of its subsidiaries; (c) the transfer of any shares of Common Stock owned or
hereafter acquired by the undersigned, either during the undersigned’s lifetime or on death, by
will or intestate succession, to the immediate family of the undersigned or transfers to a trust
the beneficiaries of which are exclusively the undersigned and/or a member or members of the
undersigned’s immediate family or (d) transfers of shares of Common Stock as a bona fide gift or
gifts; provided that in the case of any transfer or distribution pursuant to clause (c) or
(d), each donee shall execute and deliver to the Representatives a lock-up letter in the form of
this paragraph; and provided, further, that in the case of any transfer or
distribution pursuant to clause (c) or (d), no filing by any party (donor, donee, transferor or
transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement
shall be required or shall be made voluntarily in connection with such transfer or distribution
(other than a filing on a Form 5 made after the expiration of the 90-day period referred to above).
Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the 90-day
period, the restrictions imposed by this Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event.. In addition, the undersigned agrees that, without the
prior written consent of X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective on
or before November 30, 2009, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for and delivery of
the Common Stock to be sold thereunder, the undersigned shall be released from all obligations
under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Letter Agreement.
This lock-up agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
| Very truly yours,
[NAME OF STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-2
ANNEX C
Price per share: $16.50
Shares of common stock sold in the offering: 12,000,000
Shares of common stock sold in the offering: 12,000,000
A-3