Attached files
| file | filename |
|---|---|
| 8-K - STANDARD MOTOR PRODUCTS, INC. | v164707_8k.htm |
| EX-5.1 - STANDARD MOTOR PRODUCTS, INC. | v164707_ex5-1.htm |
Standard
Motor Products, Inc.
Common
Stock
Underwriting
Agreement
October 29, 2009
Goldman,
Sachs & Co.,
As representatives of the several
Underwriters
named in Schedule I
hereto,
85 Broad
Street,
New York,
New York 10004.
Ladies
and Gentlemen:
Standard
Motor Products, Inc., a New York corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the “Underwriters”) an
aggregate of 3,000,000 shares (the “Firm Shares”) and, at
the election of the Underwriters, up to 450,000 additional shares (the “Optional Shares”) of
Common Stock, par value $2.00 per share (“Stock”), of the
Company (the Firm Shares, and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2(b) hereof, being collectively called the “Shares”).
1. Representations and
Warranties of the Company. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) A
registration statement on Form S-3 (File No. 333-161101) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities
and Exchange Commission (the “Commission”); the
Initial Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by reference in
the prospectus included therein, to you for each of the other Underwriters have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration
Statement”), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the “Act”), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment
thereto
or any part thereof or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (the base prospectus filed as part of the Initial Registration
Statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement relating to the Shares, is
hereinafter called the “Basic Prospectus”;
any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits thereto
and including any prospectus supplement relating to the Shares that is filed
with the Commission and deemed by virtue of Rule 430B under the Act to be part
of the Initial Registration Statement, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter
called the “Pricing
Prospectus”; the form of the final prospectus relating to the Shares
filed with Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3,
as of the date of such prospectus; any reference to any amendment or supplement
to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration
Statement, any prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act and any documents filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the Act relating to the
Shares is hereinafter called an “Issuer Free Writing
Prospectus”);
(b) No
order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any
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statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) For
the purposes of this Agreement, the “Applicable Time” is
8:00 p.m. (Eastern time) on the date of this Agreement. The Pricing
Prospectus, considered together with the actual number and the actual price of
Shares to be purchased by the Underwriters, as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(a) hereto does not conflict with
the information contained in the Registration Statement, the Pricing Prospectus
or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Prospectus as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in
the Pricing Prospectus or in an Issuer Free Writing Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d) The
documents incorporated by reference in the Pricing Prospectus and Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co. expressly for use
therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b) hereto;
(e) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the rules and
3
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(f) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or material interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any change
in the capital stock or long term debt of the Company and its subsidiaries or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, business,
financial position, shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole (“Material Adverse
Effect”), otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) The
Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Pricing Prospectus or as set forth in Schedule V
hereto or such as would not reasonably be expected to have a Material Adverse
Effect; and any material real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries; except where the failure to
be so valid, subsisting and enforceable would not reasonably be expected to have
a Material Adverse Effect;
(h) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New York, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Pricing Prospectus; the Company and its subsidiaries are
qualified to do business and in good standing in each of the jurisdictions
listed under their respective names on Schedule III hereto, which are,
individually or in the aggregate, all of the jurisdictions in which failure to
be so qualified or in good standing would reasonably be expected to have a
Material Adverse Effect;
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(i) The
Company has an authorized capitalization as set forth in the Pricing Prospectus
and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform
in all material respects to the description of the Stock contained in the
Pricing Prospectus and Prospectus; and all of the issued shares of capital stock
of each Material Subsidiary (as defined below) have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as otherwise set forth in the Pricing
Prospectus or noted on Schedule IV or V hereto) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(j) The
Shares to be issued and sold by the Company to the Underwriters hereunder have
been duly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description thereof in the Pricing
Prospectus;
(k) The
issue and sale of the Shares and the compliance by the Company with this
Agreement and the consummation of the transactions herein contemplated 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, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or material 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 Restated Certificate of Incorporation, as amended, or
Restated By-laws of the Company or (iii) result in any violation of any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except for any such conflicts, violations, breaches and defaults in
the case of clauses (i) and (iii) that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement except the registration of the Shares under the
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by the
Underwriters;
(l) Other
than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject, which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect; and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
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(m) Neither
the Company nor any of its subsidiaries is in violation of its Restated
Certificate of Incorporation, as amended, or Restated By-laws (or comparable
organizational documents) or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound, except for
any such violations as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
(n) The
statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary
of the terms of the Stock, and under the caption “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate and fair in all material respects; provided, however, that this
representation and warranty shall not apply to any statements made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein;
(o) The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”);
(p) At
the earliest time after the filing of the Initial Registration Statement that
the Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares, the Company was not
an “ineligible issuer” as defined in Rule 405 under the Act;
(q) The
subsidiaries of the Company listed on Schedule IV hereto are all of the
subsidiaries that are material to the financial condition, business or results
of operations of the Company (each, a “Material
Subsidiary”);
(r) The
contracts, indentures, mortgages, deeds of trust, promissory notes, leases or
other agreements and instruments filed as exhibits to the Registration
Statement, the Company’s Annual Report on Form 10-K for the year-ended December
31, 2008, and the Company’s Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 2009, respectively, are all of the
agreements that are material to the financial condition, business or results of
operations of the Company and its subsidiaries, taken as a whole (each, a “Material
Contract”);
(s) Except
as otherwise set forth in the Pricing Prospectus, the Company and its
subsidiaries (i) are in compliance with all applicable foreign, federal,
state or local laws and regulations, including common law, relating to the
protection of the environment and/or human health or safety, to the extent
relating to hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental
Laws”), (ii) to their knowledge have not incurred any liabilities
relating to any Environmental Law,
6
(iii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
business activities and (iv) are in compliance with all terms and conditions of
any such permit, license or approval, except where, in clauses (i) through (iv),
such noncompliance with Environmental Laws, liabilities, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect;
(t) Grant
Thornton LLP, who have certified certain financial statements of the Company and
its subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder;
(u) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its
internal control over financial reporting;
(v) Since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting; and
(w) The
Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its subsidiaries is
made known to the Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure controls and
procedures are effective.
2. Purchase and Sale of the
Shares. Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $8.0750, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company
7
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in clause (a) of this Section
2, that portion of the number of Optional 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 Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The
Company hereby grants to the Underwriters the right to purchase at their
election up to an aggregate of 450,000 Optional Shares, at the purchase price
per share set forth in the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares, provided that the
purchase price per Optional Share shall be reduced by an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Firm Shares but not payable on the Optional Shares. Any such election
to purchase Optional Shares may be exercised only by written notice from you to
the Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such
notice.
3. Offer of Firm Shares by the
Underwriters. Upon the authorization by you of the release of
the Firm Shares, the several Underwriters propose to offer the Firm Shares for
sale upon the terms and conditions set forth in the Prospectus.
4. Shares Matters; Time
of Delivery Matters. (a) The Shares to be purchased by
each Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as Goldman, Sachs & Co. may
request upon at least forty-eight hours’ prior notice to the Company shall be
delivered by or on behalf of the Company to Goldman, Sachs & Co., through
the facilities of The Depository Trust Company (“DTC”), for the
account of such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of Federal (same-day) funds to
the account specified by the Company to Goldman, Sachs & Co. at least
forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the “Designated
Office”). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
November 4, 2009 or such other time and date as Goldman, Sachs & Co.
and the Company may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs &
Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters’
election to purchase such Optional Shares, or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm
Shares
8
is herein called the “First Time of
Delivery”, such time and date for delivery of the Optional Shares, if not
the First Time of Delivery, is herein called the “Second Time of
Delivery”, and each such time and date for delivery is herein called a
“Time of
Delivery”.
(b) The
documents to be delivered at each Time of Delivery by or on behalf of the
parties hereto pursuant to Section 8 hereof, including the cross receipt for the
Shares and any additional documents requested by the Underwriters pursuant to
Section 8(k) hereof, will be delivered at the offices of Sullivan & Cromwell
LLP, 125 Broad Street, New York, New York 10004 (the “Closing Location”) or
as otherwise agreed to by the parties hereto, and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting
will be held at the Closing Location at 5:00 p.m., New York City time, on the
New York Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes
of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. Covenants of the
Company. The Company agrees with each of the
Underwriters:
(a) To
prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the date of this Agreement or such
earlier time as may be required under the Act; to make no further amendment or
any supplement to the Registration Statement, the Basic Prospectus or the
Prospectus prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof, provided, however, in no event
shall the Company be prohibited from making a filing, which, upon the advice of
its outside counsel, the Company should make in order to comply with applicable
laws; to advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any amendment or supplement to the Prospectus has been filed and to furnish
you with copies thereof; to file promptly all material required to be filed by
the Company with the Commission pursuant to Rule 433(d) under the Act within the
time required by such Rule; to 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 (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required in connection with the offering or sale of the Shares; to
advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus in respect of the Shares, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement
9
or the Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order;
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions
as you may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior
to 10:00 a.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(d) To
make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
10
(e) During
the period beginning from the date hereof and continuing to and including the
date 90 days after the date of the Prospectus, not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise
dispose, except as provided hereunder, of any securities of the Company that are
substantially similar to the Shares, including but not limited to any options or
warrants to purchase shares of Stock or any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock option
plans, employee stock ownership plans or other employee plans of a similar
nature, existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), without
your prior written consent;
(f) If
the Company elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(g) Upon
request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and
corporate logo (collectively, “Intellectual
Property”) for use on the website, if any, operated by such Underwriter
for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that none of
the Underwriters may alter, change, enhance or otherwise modify the Intellectual
Property without the prior written consent of the Company, and provided further that the
License shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred;
(h) To
use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption
“Use of Proceeds”; and
(i) To
use its best efforts to list, subject to notice of issuance, the Shares on the
New York Stock Exchange (the “Exchange”).
6. Free Writing Prospectus
Matters.
(a) The Company represents
and agrees that, without the prior written consent of Goldman, Sachs & Co.,
it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the Act;
each Underwriter represents and agrees that,
without the prior written consent of the Company and Goldman, Sachs & Co.,
it has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus; any such free writing prospectus the use
of which has been consented to by the Company and Goldman, Sachs & Co. is
listed on Schedule II(a) hereto;
11
(b) The Company has complied
and will comply with the requirements of Rule 433 under the Act applicable to
any Issuer Free Writing Prospectus, including timely filing with the Commission
or retention where required and legending; and
(c) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an 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 then
prevailing, not misleading, the Company will give prompt notice thereof to
Goldman, Sachs & Co. and, if requested by Goldman, Sachs & Co., will
prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein.
7. Fees and
Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey(s), provided that such
fees, exclusive of disbursements, shall not exceed $10,000; (iv) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required reviews by the Financial Industry Regulatory
Authority, Inc. of the terms of the sale of the Shares; (v) the cost of
preparing certificates for the Shares; (vi) the cost and charges of any transfer
agent or registrar; (vii) all fees and expenses in connection with listing the
Shares on the Exchange; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
12
8. Conditions to Underwriters’
Obligations. The obligations of the Underwriters hereunder, as
to the Shares to be delivered at each Time of Delivery, shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; all material required to be filed by the Company pursuant to Rule 433(d)
under the Act shall have been filed with the Commission within the applicable
time period prescribed for such filings by Rule 433; if the Company has elected
to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement
shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Sullivan
& Cromwell LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated such Time of Delivery, as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Kelley
Drye & Warren LLP, counsel for the Company, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex II(a)
hereto), dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own and/or lease its properties and conduct its
business as described in the Prospectus;
(ii) The
Company has an authorized capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly authorized and
issued and are fully paid and non-assessable and the Shares conform in all
material respects to the description of the Shares in the
Prospectus;
(iii) To
such counsel’s knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which
13
the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would reasonably
be expected to individually or in the aggregate have a Material Adverse Effect,
and to such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This
Agreement has been duly authorized, executed and delivered by the
Company;
(v) The
issue and sale of the Shares being delivered at such Time of Delivery and the
compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not (A) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any contracts, indentures, mortgages, deeds of trust, promissory
notes, leases or other agreements and instruments filed as exhibits to the
Registration Statement, the Company’s Annual Reports on Form 10-K for the year
ended December 31, 2008, and the Company’s Quarterly Reports on Form 10-Q for
the quarters ended March 31, June 30 and September 30, 2009, respectively, (B)
conflict with or result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or Restated By-laws of the Company or
(C) result in a breach or violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except in the case of clauses (A) and (C) for such breaches or
violations that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(vi) No
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained under the Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(vii) The
statements set forth in the Prospectus under the caption “Description of Capital
Stock”, insofar as they purport to constitute a summary of the terms of the
Stock, under the captions “Plan of Distribution” and “Underwriting”, insofar as
they purport to describe the provisions of the laws and documents referred to
therein, are accurate and fair in all material respects;
(viii) The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act;
14
(ix) The
documents incorporated by reference in the Prospectus or any further amendment
or supplement thereto, made by the Company prior to such Time of Delivery (other
than the financial statements and schedules and other financial data therein or
incorporated therein by reference, as to which such counsel need make no
statement), when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder;
(x) The
Registration Statement, the Prospectus and any further amendments and
supplements thereto, as applicable, made by the Company prior to such Time of
Delivery (other than the financial statements and schedules and other financial
data therein, or incorporated therein by reference, as to which such counsel
need make no statement) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder.
In
rendering such opinion, Kelley Drye & Warren LLP shall state further that
although they do not assume any responsibility for the accuracy or completeness
of the statements contained in the Registration Statement, the Pricing
Prospectus or the Prospectus, except for those referred to in the opinion in
subsection (vii) of this Section 8(c), nothing has come to their attention that
leads them to believe (i) that any part of the Registration Statement, or any
further amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and schedules and other financial data
therein, or incorporated therein by reference, as to which such counsel need
make no statement), when such part or amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
(ii) that the Pricing Prospectus, considered together with the actual number and
the actual price of Shares to be purchased by the Underwriters (other than the
financial statements and schedules and other financial data therein or
incorporated therein by reference, as to which such counsel need make no
statement), as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; (iii) that, as of its date and as of such Time of
Delivery, the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial statements
and schedules and other financial data therein or incorporated therein by
reference, as to which such counsel need make no statement) contained or
contains an untrue statement of a material fact or omitted 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; (iv) that any
amendment to the Registration Statement required to
15
be filed or any contract or other document of a character required
to be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be described in the
Registration Statement, the Basic Prospectus or the Prospectus has not been
filed or incorporated by reference or described as required or (v) the documents
incorporated by reference in the Prospectus or any further amendment or
supplement thereto (except for financial statements and schedules and other
financial data therein or incorporated therein by reference, as to which such
counsel need make no statement) when such documents became effective or were
filed, as the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement therein, in light of the circumstances
under which they were made when such documents were so filed, not
misleading;
In
rendering such opinion, Kelley Drye & Warren LLP may rely as to factual
matters upon certificates of officers of the Company and its subsidiaries; as to
matters involving good standing, authorization to do business and other matters
within their knowledge, upon certificates of public officials, and as to all
matters governed by laws other than the State of New York, the General
Corporation Law of Delaware and the federal laws of the United States, on
opinions satisfactory to you;
(d) Carmine
Broccole, Vice President General Counsel and Secretary of the Company shall have
furnished you with a written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The
Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction listed with
respect to the Company on Schedule III hereto (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of the Company,
provided that
such counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(ii) Each
Material Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
Material Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors’ qualifying shares and except
as otherwise set forth in the Prospectus or noted
16
on Schedule IV hereto) are owned directly or indirectly by the
Company and, except as otherwise noted on Schedule V hereto, are free and clear
of all liens, encumbrances, equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such
counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iii) Other
than as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to individually or in the aggregate
have a Material Adverse Effect, and to such counsel’s knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(iv) The
issue and sale of the Shares being delivered at such Time of Delivery and the
compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not (A) conflict with or result in any
violation of the provisions of the Restated Certificate of Incorporation, as
amended, or Restated By-laws of the Company or (B) result in a breach or
violation of any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties, except in the case of
clause (B) for such breaches or violations that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect;
(v) Neither
the Company nor any of its Material Subsidiaries is in violation of their
respective certificate of incorporation or by-laws (or comparable organizational
documents) or, to such counsel’s knowledge after reasonable investigation, in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any Material Contract.
(e) On
the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any post effective
amendment to the Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Grant Thornton LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto;
(f) (i) Neither
the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Pricing Prospectus any material loss or material interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus, and (ii) since
17
the respective dates as of which information is given in the
Pricing Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Pricing Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(g) On
or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities by any “nationally recognized
statistical rating organization”, as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s debt
securities;
(h) On
or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the Exchange; (ii) a suspension or material limitation in trading in the
Company’s securities on the Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or
(v) in your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
(i) The
Shares at each Time of Delivery shall have been duly listed, subject to notice
of issuance, on the Exchange;
(j) The
Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement; and
(k) The
Company shall have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Company satisfactory to you as to the
accuracy of the representations and warranties of the Company herein at and as
of such Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) and (f) of this Section and as to
such other matters as you may reasonably request.
18
9. Indemnification. (a) The
Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Act, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Goldman,
Sachs & Co. expressly for use therein.
(b) Each
Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Goldman, Sachs
& Co. expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case
any such action shall be
19
brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. It is understood that the indemnifying
party or parties shall not, in connection with any one action or proceeding or
separate but substantially similar actions or proceedings arising out of the
same general allegations be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all indemnified parties (except to
the extent that local counsel (in addition to any regular counsel) is required
to effectively defend against any such action or
proceeding). No indemnifying party shall, without the prior
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. No indemnified party shall, without the
written consent of the indemnifying party (such consent not to be unreasonably
withheld), effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder.
(d) If the indemnification provided for in this Section
9 is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) 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. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits 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 which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 proportion as the total
20
net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault 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 on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The
obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
10. Defaulting
Underwriter. (a) If any Underwriter shall default
in its obligation to purchase the Shares which it has agreed to purchase
hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained
herein. If within thirty six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the Company
shall be entitled to a further period of thirty six hours within which to
procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of
21
Delivery
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. Survival. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
12. Limitation of
Liability. If this Agreement shall be terminated pursuant to
Section 10 hereof, the Company shall not then be under any liability to any
Underwriter except as provided in Sections 7 and 9 hereof; but, if for any
other reason, any Shares are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by
22
you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company shall then be under no
further liability to any Underwriter except as provided in Sections 7 and 9
hereof.
13. Notice,
etc. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you.
All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to you as the Representatives at 85 Broad Street, 20th Floor, New
York, New York 10004, Attention: Registration Department, facsimile (212)
902-9316; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Underwriters are required to
obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of
their respective clients, as well as other information that will
allow the underwriters to properly identify their respective
clients.
The
Company hereby agrees to provide written notice of any event that would result
in an extension of the “Lock-Up Period”, as that term is defined in each letter
from one of the directors and certain officers of the Company that is executed
and delivered to the Representatives on the date hereof (each such letter, a
“Lock-Up Agreement”), pursuant to the terms of the applicable Lock-Up Agreement,
to the signatory of such Lock-Up Agreement.
14. Binding
Effect. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 9 and 11 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15. Time of the Essence;
Business Day. Time shall be of the essence of this
Agreement. As used herein, the term “business day” shall mean any day
when the Commission’s office in Washington, D.C. is open for
business.
16. Underwriters Not
Fiduciaries. The Company acknowledges and agrees that (i) the
purchase and sale of the Shares pursuant to this Agreement is an arm’s-length
23
commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Company, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
17. Entire
Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter
hereof.
18. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
19. Waiver of Trial by
Jury. The Company and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
20. Tax
Disclosure. Notwithstanding anything herein to the contrary,
the Company is authorized to disclose to any persons U.S. federal and state tax
treatment and tax structure of the potential transaction and all materials of
any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is limited to any facts
that may be relevant to that treatment.
21. Counterparts. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
22. Amendments in
Writing. This Agreement may be amended or modified only by a
written agreement referencing this Agreement and duly executed by the parties
hereto.
23. Headings. The
heading references herein are for convenience purposes only, and shall not be
deemed to limit or affect any of the provisions hereof.
24
If the
foregoing is in accordance with your understanding, please sign and return to us
four counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
|
Very
truly yours,
Standard
Motor Products, Inc.
|
|||
|
|
By:
|
/s/ James J. Burke | |
| Name: James J. Burke | |||
| Title: Vice President Finance, | |||
|
Chief
Financial Officer
|
|||
Accepted
as of the date hereof:
Goldman,
Sachs & Co.
/s/ Goldman, Sachs & Co.
(Goldman,
Sachs & Co.)
25
|
SCHEDULE
I
|
||||||||
|
Number
of
Firm
Shares
to
be Purchased
|
Maximum
Number
of
Optional
Shares
Which
May
be
Purchased
|
|||||||
|
Underwriter
|
||||||||
|
Goldman,
Sachs & Co.
|
2,700,000 | 405,000 | ||||||
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
LLC
|
300,000 | 45,000 | ||||||
|
Total
|
3,000,000 | 450,000 | ||||||
SCHEDULE
II
(a) Issuer
Free Writing Prospectuses: None
(b) Additional
Documents Incorporated by Reference: None
SCHEDULE
III
Foreign
Qualifications
Standard Motor Products,
Inc.
|
Jurisdiction
of incorporation:
|
New
York
|
|
Foreign
qualifications:
|
California,
Florida, Kansas, North Carolina, Texas, South Carolina,
Virginia
|
SMP Motor Products
Limited
|
Jurisdiction
of incorporation:
|
Ontario
|
|
Foreign
qualifications:
|
None
|
Motortronics,
Inc.
|
Jurisdiction
of incorporation:
|
New
York
|
|
Foreign
qualifications:
|
None
|
Stanric, Inc.
|
Jurisdiction
of incorporation:
|
Delaware
|
|
Foreign
qualifications:
|
None
|
Mardevco Credit
Corp.
|
Jurisdiction
of incorporation:
|
New
York
|
|
Foreign
qualifications:
|
None
|
Standard Motor Products
(Hong Kong) Limited
|
Jurisdiction
of incorporation:
|
Hong
Kong
|
|
Foreign
qualifications:
|
None
|
Industrial & Automotive
Associates, Inc.
|
Jurisdiction
of incorporation:
|
California
|
|
Foreign
qualifications:
|
None
|
Standard Motor Products
Holdings Limited
|
Jurisdiction
of incorporation:
|
United
Kingdom
|
|
Foreign
qualifications:
|
None
|
Standard Motor Products de
Mexico, S. de R.L. de C.V.
|
Jurisdiction
of incorporation:
|
Mexico
|
|
Foreign
qualifications:
|
None
|
SMP Engine Management, S. de
R.L. de C.V.
|
Jurisdiction
of incorporation:
|
Mexico
|
|
Foreign
qualifications:
|
None
|
SMP Four Seasons de Mexico,
S. de R.L. de C.V.
|
Jurisdiction
of incorporation:
|
Mexico
|
|
Foreign
qualifications:
|
None
|
SCHEDULE
IV
Material
Subsidiaries
|
Name
|
Percent
of
Voting
Securities
Owned
|
|||
|
SMP
Motor Products Limited
|
100 | % | ||
|
Motortronics,
Inc.
|
100 | % | ||
|
Stanric,
Inc.
|
100 | % | ||
|
Mardevco
Credit Corp.
|
100 | % | ||
|
Standard
Motor Products (Hong Kong) Limited
|
100 | % | ||
|
Industrial
& Automotive Associates, Inc.
|
100 | % | ||
|
Standard
Motor Products Holdings Limited
|
100 | % | ||
|
Standard
Motor Products de Mexico, S. de R.L. de C.V. (1)
|
100 | % | ||
|
SMP
Engine Management, S. de R.L. de C.V. (1)
|
100 | % | ||
|
SMP
Four Seasons de Mexico, S. de R.L. de C.V. (1)
|
100 | % | ||
|
(1)
|
Standard
Motor Products, Inc. owns 49,999 shares and Motortronics, Inc.
owns 1 share of these
companies.
|
SCHEDULE
V
Disclosures
|
|
·
|
The
Company has pledged substantially all of it assets, including accounts
receivable, inventory and fixed assets, and those of certain of its
subsidiaries (including shares issued by its subsidiaries) as collateral
for its obligation under the Second Amended and Restated Credit Agreement
between the Company and General Electric Capital Corporation, dated as of
March 20, 2007, as further amended, and the Credit Agreement, dated as of
December 29, 2005, between SMP Motor Products Ltd., GE Canada Finance
Holding Company, and the other parties thereto, as
amended.
|
ANNEX
I
Accountant’s
Letter
Pursuant
to Section 8(d) of the Underwriting Agreement, the accountants shall furnish
letters to the Underwriters to the effect that:
(i) They
are independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules
and regulations thereunder;
(ii) In
their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro
forma financial information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies
of which have been separately furnished to the representatives of the
Underwriters (the “Representatives”);
(iii) They
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed
consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included in the
Company’s quarterly reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The
unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most
recent fiscal years included in the Prospectus and included or incorporated by
reference in Item 6 of the Company’s Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by
reference in the Company’s Annual Reports on Form 10-K for such
fiscal years;
(v) They
have compared the information in the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On
the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i)
the unaudited condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the Prospectus
and/or included or incorporated by reference in the Company’s Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the Company’s Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) any
other unaudited income statement data and balance sheet items included in the
Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Company’s Annual Report on Form 10-K for the most recent fiscal
year;
(C) the
unaudited financial statements which were not included in the Prospectus but
from which were derived the unaudited condensed financial statements referred to
in clause (A) and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company’s Annual Report
on Form 10-K for the most recent fiscal year;
(D) any
unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those
statements;
(E) as
of a specified date not more than five days prior to the date of such letter,
there have been any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its subsidiaries,
or any decreases in consolidated net current assets or shareholders’ equity or
other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(F) for
the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(vii) In
addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to
certain
amounts, percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
ANNEX
II(a)
Form
of Kelley Drye & Warren LLP Opinion
October
__, 2009
GOLDMAN,
SACHS & CO.
As
Representatives of the
several
Underwriters
85 Broad
Street
New York,
NY 10004
|
Re:
|
Standard Motor
Products, Inc.
|
Ladies
and Gentlemen:
We have
acted as legal counsel for Standard Motor Products, Inc., a New York corporation
(the “Company”), in connection with the offer and sale of an aggregate of up to
[_____] shares (the “Shares”) of the Company’s common stock, par value $2.00 per
share (the “Common Stock”), pursuant to an Underwriting Agreement dated October
[__], 2009 (the “Underwriting Agreement”) between the Company and Goldman, Sachs
& Co., as representatives (the “Representatives”) of the several
underwriters identified on Schedule I to the Underwriting Agreement (the
“Underwriters”).
This
opinion is delivered to you pursuant to Section 8(c) of the Underwriting
Agreement. Capitalized terms used herein without definition shall
have the meanings specified in the Underwriting Agreement.
In
connection with this opinion, we have examined and relied upon (i) copies of the
Company’s Registration Statement on Form S-3 (Registration No. 333-161101) and
all amendments thereto, the Pricing Prospectus and the Prospectus, filed with
the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Act”), and the rules and regulations promulgated
thereunder (the “Rules and Regulations”) relating to the offering of the Shares,
(ii) copies of the Restated Certificate of Incorporation, as amended, and the
Restated By-laws of the Company, (iii) the Underwriting Agreement, (iv) the
corporate minute books, stock records and records of corporate proceedings of
the Company and (v) such other agreements, documents, opinions, certificates and
instruments as we have deemed relevant and necessary as a basis for our opinions
herein. We have not conducted any independent investigation, examination or
inquiry of factual matters in rendering our opinions set forth in this letter
other than the document examination described herein, and our opinion is
qualified in all respects by the scope of such document
examination.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
2
In our
examination, we have assumed, and express no opinion as to, the genuineness of
all signatures, the authenticity and completeness of all documents submitted to
us as originals, the conformity to originals of all documents submitted to us as
copies, the authenticity of the originals of such latter documents and the legal
competence and capacity of all natural persons. As to certain factual
matters material to our opinions herein, we have relied, to the extent that
relevant facts were not independently established by us and to the extent we
deemed reliance proper, on certificates of public officials and certificates,
oaths and declarations of officers and other representatives of the
Company. We have assumed the accuracy and completeness of the
information obtained from public officials and records included in the documents
referenced to above. When, in this opinion, we have used the phrases
“to our knowledge”, “known to us” or phrases of like import, such phrases refer
only to the present actual knowledge (i.e., conscious awareness) of the
attorneys who are presently at this firm and who our records indicate have
devoted substantial attention to the offering of the Shares or other matters as
to which we have provided legal representation for the Company within the twelve
(12) months preceding the date of this letter. In addition, except as
expressly set forth in this letter, we have not, in rendering our opinion in
Paragraph 3 below, reviewed court or other public records, but rather, have
relied, solely as to the factual existence of any court orders, suits, actions,
proceedings, litigation or investigations of the type referenced therein, on
certificates of officers of the Company .
Although,
in connection with rendering this opinion, we have made the assumptions set
forth above and below and have relied upon the representations, warranties and
certificates referenced above, nothing has come to our attention that has caused
us to believe that we are not justified in relying on any of such assumptions or
on any of such representations, warranties or certificates.
In
addition, as legal counsel, we have participated in conferences with officers,
directors and other representatives of the Company and representatives of the
independent accountants of the Company and of the Representatives and their
counsel at which the contents of the Registration Statement, the Pricing
Prospectus and the Prospectus and related matters were discussed; however,
except as set forth herein, we have not independently verified the accuracy or
completeness of, or otherwise verified the statements made in, the Registration
Statement, the Pricing Prospectus and the Prospectus and we are not passing upon
and do not assume responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Pricing Prospectus and the Prospectus and give no assurance that
the procedures described in this paragraph would necessarily reveal matters of
significance with respect to the accuracy, completeness or fairness of the
Registration Statement, the Pricing Prospectus and the
Prospectus. The opinions herein are subject to the following
limitations and qualifications:
(a) We
express no opinion concerning any law other than the laws of the State of New
York, and the federal law of the United States, and we express no opinion with
respect to the applicability thereto, or the effect thereon of the laws of any
other jurisdiction.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
3
(b) We
have been advised by the Company that all shares of the Company’s capital stock
prior to the date hereof are fully paid; we have relied upon such advice and
have made no independent investigation thereof.
(c) We
express no opinion with respect to the enforceability of the Underwriting
Agreement or any of the provisions thereof.
Based on
the foregoing, but subject to the limitations and qualifications set forth
herein, it is our opinion that:
(1) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New York, with corporate power and
authority to own and/or lease its properties and conduct its business as
described in the Prospectus.
(2) The
Company has an authorized capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company (including the Shares being
delivered on the date hereof) have been duly and validly authorized and issued
and are fully paid and non-assessable and the Shares conform in all material
respects to the description of the Shares in the Prospectus.
(3) To
our knowledge and other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would reasonably be expected to individually or in the
aggregate have a Material Adverse Effect, and to our knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
4
(4) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(5) The
issue and sale of the Shares being delivered on the date hereof and the
compliance by the Company with the Underwriting Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any contracts, indentures, mortgages, deeds of trust, promissory
notes, leases or other agreements and instruments filed as exhibits to the
Registration Statement, the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008, and the Company’s Quarterly Reports on Form 10-Q for
the quarters ended March 31, June 30 and September 30, 2009, respectively, (B)
conflict with or result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or Restated By-laws of the Company or
(C) result in a breach or violation of any statute or any order, rule or
regulation known to us of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties, except in the case of clauses (A) and (C) for such breaches or
violations that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(6)
No consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained under the Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(7)
The statements set forth in the Prospectus under the caption “Description of
Capital Stock”, insofar as they purport to constitute a summary of the terms of
the Shares, under the captions “Plan of Distribution” and “Underwriting”,
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate and fair in all material
respects.
(8) The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as
amended.
(9)
The documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto, made by the Company prior to the date hereof
(other than the financial statements and schedules and other financial data
therein or incorporated therein by reference, as to which we make no statement),
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Act or the Securities Exchange Act of 1934, as amended, as applicable, and the
rules and regulations of the Commission thereunder.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
5
(10) The
Registration Statement, the Pricing Prospectus and the Prospectus and any
further amendments and supplements thereto, as applicable, made by the Company
prior to the date hereof (other than the financial statements and schedules and
other financial data therein, or incorporated therein by reference, as to which
we make no statement) comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations thereunder.
Although
we do not assume any responsibility for the accuracy or completeness of the
statements contained in the Registration Statement, the Pricing Prospectus or
the Prospectus, except for those referred to in subsection (7) above, nothing
has come to our attention that leads us to believe (i) that any part of the
Registration Statement, or any further amendment thereto made by the Company
prior to the date hereof (other than the financial statements and schedules and
other financial data therein, or incorporated therein by reference, as to which
we make no statement), when such part or amendment became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (ii) that the Pricing Prospectus, considered together with the
actual number and the actual price of Shares to be purchased by the Underwriters
(other than the financial statements and schedules and other financial data
therein or incorporated therein by reference, as to which we make no statement),
as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (iii) that, as of its date and as of the date hereof, the Prospectus
or any further amendment or supplement thereto made by the Company prior to the
date hereof (other than the financial statements and schedules and other
financial data therein or incorporated therein by reference, as to which we make
no statement) contained or contains an untrue statement of a material fact or
omitted 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; (iv) that any amendment to the Registration Statement required to be
filed or any contract or other document of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the Registration
Statement, the Basic Prospectus or the Prospectus has not been filed or
incorporated by reference or described as required or (v) the documents
incorporated by reference in the Prospectus or any further amendment or
supplement thereto (except for financial statements and schedules and other
financial data therein or incorporated therein by reference, as to which we make
no statement) when such documents became effective or were filed, as the case
may be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act, with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made when such documents were so filed, not misleading.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
6
This
opinion is being delivered to you pursuant to the Underwriting Agreement, and
neither this opinion nor any part hereof may be delivered to, used or relied
upon by any other person without our prior written consent.
This
opinion is given as of the date hereof and we assume no obligation to update or
supplement this opinion to reflect any facts or circumstances which may
hereafter come to our attention or any changes in law which may hereafter
occur.
|
Very
truly yours,
KELLEY
DRYE & WARREN LLP
|
ANNEX
II(b)
Form
of Carmine Broccole Opinion
October
__, 2009
GOLDMAN,
SACHS & CO.
As
Representatives of the
several
Underwriters
85 Broad
Street
New York,
NY 10004
|
Re:
|
Standard Motor
Products, Inc.
|
Ladies
and Gentlemen:
I am Vice President General Counsel
and Secretary of Standard Motor Products, Inc., a New York corporation (the
“Company”) and, in that capacity, I am generally familiar with the affairs and
corporate records of the Company and its subsidiaries. I am also
familiar with the proposed offer and sale of an aggregate of up to [___] shares
(the “Shares”) of the Company’s common stock, par value $2.00 per share (the
“Common Stock”), pursuant to an Underwriting Agreement dated October [__], 2009
(the “Underwriting Agreement”) between the Company and Goldman, Sachs & Co.,
as representatives (the “Representatives”) of the several underwriters
identified on Schedule I to the Underwriting Agreement (the
“Underwriters”).
This opinion is delivered to you
pursuant to Section 8(d) of the Underwriting Agreement. Capitalized
terms used herein without definition shall have the meanings specified in the
Underwriting Agreement.
In connection with this opinion, I
have examined and relied upon (i) copies of the Company’s Registration Statement
on Form S-3 (Registration No. 333-161101) and all amendments thereto, the
Pricing Prospectus and the Prospectus, filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Act”), and the rules and regulations promulgated thereunder (the “Rules and
Regulations”) relating to the offering of the Shares, (ii) copies of the
Restated Certificate of Incorporation, as amended, and the Restated By-laws of
the Company, (iii) copies of the respective certificates of incorporation and
by-laws, or comparable organizational documents of each Material Subsidiary,
(iv) the Underwriting Agreement, (v) the corporate minute books, stock
records and records of corporate proceedings of the Company and each Material
Subsidiary and (v) such other agreements, documents, opinions, certificates and
instruments as I have deemed relevant and necessary as a basis for my opinions
herein.
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
2
In my
examination, I have assumed, and express no opinion as to, the genuineness of
all signatures, the authenticity and completeness of all documents submitted to
me as originals, the conformity to originals of all documents submitted to me as
copies, the authenticity of the originals of such latter documents and the legal
competence and capacity of all natural persons. As to certain factual
matters material to my opinions herein, I have relied, to the extent that
relevant facts were not independently established by me and to the extent I
deemed reliance proper, on certificates of public officials. I have
assumed the accuracy and completeness of the information obtained from public
officials and records included in the documents referenced
above. When, in this opinion, I have used the phrases “to my
knowledge”, “known to me” or phrases of like import, such phrases refer only to
my present actual knowledge (i.e., conscious awareness).
Although,
in connection with rendering this opinion, I have made the assumptions set forth
above and have relied upon the certificates referenced above, nothing has come
to my attention that has caused me to believe that I am not justified in relying
on any of such assumptions or certificates.
Based on
the foregoing, but subject to the limitations and qualifications set forth
herein, it is my opinion that:
(1) The
Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction listed with
respect to the Company on Schedule III to the Underwriting
Agreement;
(2) Each
Material Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
Material Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors’ qualifying shares and except
as otherwise set forth in the Prospectus or noted on Schedule IV to the
Underwriting Agreement) are owned directly or indirectly by the Company and,
except as otherwise noted on Schedule V to the Underwriting Agreement, are free
and clear of all liens, encumbrances, equities or claims;
(3) Other
than as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to individually or in the aggregate
have a Material Adverse Effect, and to my knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
Goldman,
Sachs & Co.
As
Representatives of the
several
Underwriters
October
__, 2009
Page
3
(4) The
issue and sale of the Shares being delivered on the date hereof and the
compliance by the Company with the Underwriting Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or result in
any violation of the provisions of the Restated Certificate of Incorporation, as
amended, or Restated By-laws of the Company or (B) result in a breach or
violation of any statute or any order, rule or regulation known to me of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except in the case of clause (B)
for such breaches or violations that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(5) Neither
the Company nor any of its Material Subsidiaries is in violation of the
respective certificate of incorporation or by-laws (or comparable organizational
documents) or, to my knowledge after reasonable investigation, in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any Material Contract.
This
opinion is being delivered to you pursuant to the Underwriting Agreement, and
neither this opinion nor any part hereof may be delivered to, used or relied
upon by any other person without my prior written consent.
This
opinion is given as of the date hereof and I assume no obligation to update or
supplement this opinion to reflect any facts or circumstances which may
hereafter come to my attention or any changes in law which may hereafter
occur.
|
Very
truly yours,
Carmine
J. Broccole
Vice
President General Counsel and
Secretary
|