UST INC. 5.75% Senior Notes due 2018 UNDERWRITING AGREEMENT
February 26, 2008
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
UST Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several
underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting as managers
(the “Managers”), the principal amount of its debt securities identified in Schedule I hereto (the
“Securities”), to be issued under the indenture specified in Schedule I hereto (the “Base
Indenture”), as supplemented by the supplemental indenture specified in Schedule I hereto (the
“Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the
Company and the Trustee identified in such Schedule (the “Trustee”). If the firm or firms listed
in Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used herein shall each be deemed to refer to such firm or firms.
The terms “you” and “your” as used herein shall be deemed to refer to the Managers.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to securities (the “Shelf Securities”), including the Securities,
to be issued from time to time by the Company. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act
of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration
Statement,” and the related prospectus covering the Shelf Securities dated February 26, 2008 in the
form first used to confirm sales of the Securities (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to the Securities in the form first
used to confirm sales of the Securities (or in the form first made available to the Underwriters by
the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any
preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the
Basic Prospectus together with each preliminary prospectus and each free writing prospectus, if
any, each identified in Schedule I hereto, and “broadly available road show” means a “bona fide
electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made
available without restriction to any person. As used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, the
Prospectus or any preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission. The Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time
of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the
offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the
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circumstances under which they were made, not misleading and (vii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus, each as
amended or supplemented, based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Managers expressly for use therein or (B) that
part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto, and electronic road shows, if any, each furnished to you before
first use, the Company has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus.
(d) Neither the Company nor any of its “Significant Subsidiaries” (as such term is defined in
Rule 1-02 of Regulation S-X) has sustained since the date of the latest audited financial
statements included in the Time of Sale Prospectus any loss or 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 which would have individually or in the
aggregate, a material adverse effect or prospective material adverse effect on the financial
condition, results of operations or business of the Company and its subsidiaries taken as a whole
(a “Material Adverse Effect”), otherwise than as set forth or contemplated in the Time of Sale
Prospectus; and, since the respective dates as of which information is given in the Time of Sale
Prospectus, there has not 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, stockholders’ equity or results of
operations of the Company and its subsidiaries,
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which would have a Material Adverse Effect other than as set forth or contemplated in the Time
of Sale Prospectus;
(e) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Time of Sale Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to be so qualified in any such
jurisdiction would not have a Material Adverse Effect; and each Significant 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 Significant Subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(f) This Agreement has been duly authorized, executed and delivered by the Company;
(g) The Base Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company, and is a valid and binding agreement of the
Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors’ rights generally and equitable principles of
general applicability; the Supplemental Indenture has been duly authorized by the Company and, when
duly executed and delivered by the Company, the Supplemental Indenture will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws affecting creditors’ rights generally and
equitable principles of general applicability;
(h) The Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws affecting creditors’ rights generally and
equitable principles of general applicability, and will be entitled to the benefits of the
Indenture;
(i) The issue and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this
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Agreement and the consummation of the transactions herein and therein contemplated will not
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
agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is subject except for such
conflict, breach, violation or default which would not have a Material Adverse Effect, nor will
such action result in any violation of the provisions of (i) the Certificate of Incorporation or
By-laws of the Company or (ii) 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, in the case of clause (ii) above, such violation which would not 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 Securities or the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except (i) for such consents, approvals, authorizations, orders,
registrations or qualifications that have been obtained or where failure to do so would not have a
Material Adverse Effect, and would not affect the validity or enforceability of this Agreement, the
Securities, or the Indenture, and (ii) for the registration of the Securities under the Securities
Act, the qualification of the Indenture under the Trust Indenture Act and such as may be required
by the securities or Blue Sky laws of the various states or the laws of any foreign jurisdictions
in connection with the offer and sale of the Securities;
(j) Other than as set forth or contemplated in the Time of Sale 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 individually or in the aggregate, 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; and there are no
statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed or incorporated by reference as required;
(k) Each preliminary prospectus filed pursuant to Rule 424 under the Securities Act, complied
when so filed in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder;
(l) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
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Prospectus, will not be, an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended;
(m) Other than as set forth or contemplated in the Time of Sale Prospectus, the Company has
not incurred any costs or liabilities associated with any applicable foreign, federal, state and
local laws and regulations relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”)
(including, without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse Effect;
(n) Neither the Company nor any of its Significant Subsidiaries is (i) 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 other than any violations or
defaults which in the aggregate would not have a Material Adverse Effect or (ii) in violation of
its Certificate of Incorporation or By-laws;
(o) The financial statements and the notes thereto included or incorporated by reference in
the Time of Sale Prospectus present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be shown thereby at the dates and
for the periods indicated and have been prepared in accordance with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods indicated and comply as to
form in all material respects with the requirements of the Securities Act and the rules and
regulations of the Commission thereunder, except as otherwise noted therein;
(p) Ernst & Young, LLP, who have certified certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm as required by the Securities Act
and the rules and regulations thereunder adopted by the Commission and the Public Company
Accounting Oversight Board (United States);
(q) To the best of the knowledge of the Company, there is, and has been, no failure on the
part of the Company or any of the Company’s directors or officers, in their capacities as such, to
comply with the provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith;
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(r) Each of the Company and its Significant Subsidiaries maintains a system of internal
control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act)
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as set forth or contemplated in the Time of Sale Prospectus, since December
31, 2007, there has been no change in the Company’s internal control over financial reporting that
has adversely affected, or is reasonably likely to adversely affect, the Company’s internal control
over financial reporting; and
(s) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act); such disclosure controls and procedures were effective as of
December 31, 2007; and since December 31, 2007, the Company has not become aware of any deficiency
in its disclosure controls and procedures.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Securities set forth in Schedule II
hereto opposite its name at the purchase price set forth in Schedule I hereto.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company
is further advised by you that the Securities are to be offered to the public upon the terms set
forth in the Time of Sale Prospectus.
4. Payment and Delivery. Payment for the Securities shall be made to the Company by wire
transfer in Federal or other funds immediately available in New York City on the closing date and
at the time set forth in Schedule I hereto, or at such other time on the same or such other date,
not later than the fifth business day thereafter, as may be designated in writing by you. The time
and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for the Securities shall be made against delivery to you on the Closing Date for the
respective accounts of the several Underwriters of the Securities registered in such names and in
such denominations as you shall
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request in writing not less than two full business days prior to the Closing Date, with any
transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly
paid.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating accorded the
Company or any of the securities of the Company or any of its subsidiaries or in the
rating outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your
judgment, is material and adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct, as of the Closing Date, and that the Company has complied with all
of the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and a negative
assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, outside counsel for the Company,
dated the Closing Date, to the effect set forth on Annex I hereto.
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(d) The Underwriters shall have received on the Closing Date an opinion from Xxxxxxx X.
Xxxxxxxxxx, Senior Vice President, General Counsel, Secretary and Chief Administrative Officer of
the Company, or an Assistant General Counsel of the Company duly authorized by the Board of
Directors to sign in Xxxxxxx X. Xxxxxxxxxx’x absence, dated the Closing Date, to the effect set
forth on Annex II hereto.
(e) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Securities, the Registration Statement, the Prospectus, the
Time of Sale Prospectus, and other related matters as the Underwriters may reasonably require, and
the Company shall have furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, an independent registered public
accounting firm, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date
shall use a “cut-off date” not earlier than two days prior to the Closing Date.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a conformed copy of the Registration Statement
(excluding exhibits thereto and documents incorporated by reference therein) and to deliver to each
of the Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of
the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration Statement as you may reasonably
request; provided that the Company shall not be required to furnish more than one hundred (100)
copies of the Prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by
the Company.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object.
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(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that the statements in
the Time of Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Securities as in
the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not
misleading, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Securities may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the
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Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law; provided that the Company shall not be required to furnish more than
one hundred (100) copies of the Prospectus if the conditions of Rule 172(c) under the Securities
Act are satisfied by the Company.
(g) To use best efforts to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that
nothing contained herein shall require the Company to qualify as a foreign corporation or to do
business in any jurisdiction, to execute or file a general consent to service of process in any
jurisdiction or to subject itself to taxation in any jurisdiction in which it is otherwise not so
subject.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earnings statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: the fees, disbursements and expenses of the Company’s
counsel and the Company’s accountants in connection with the registration and delivery of the
Securities under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the time required by Rule
456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, all
costs and expenses related to the transfer and delivery of the Securities to the Underwriters,
including any transfer or other taxes payable thereon, the cost of printing or producing any Blue
Sky or legal investment memorandum in connection with the offer and sale of the Securities under
state securities laws and all expenses in connection with the qualification of the Securities for
offer and sale under state securities laws as provided in Section 6(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or legal investment memorandum, all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters incurred
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in connection with any review and qualification of the offering of the Securities by the
Financial Industry Regulatory Authority, Inc. (“FINRA”), any fees charged by the rating agencies
for the rating of the Securities, the cost of the preparation, issuance and delivery of the
Securities, the costs and charges of any trustee, transfer agent, registrar or depositary, the
costs and expenses of the Company relating to investor presentations on any “road show” undertaken
in connection with the marketing of the offering of the Securities, including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants, the document production charges and expenses associated with printing this
Agreement and all other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution,”
and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of
any of the Securities by them and any advertising expenses connected with any offers they may make.
(j) If the third anniversary of the initial effective date of the Registration Statement
occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary
to file a new shelf registration statement and to take any other action necessary to permit the
public offering of the Securities to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared effective by the
Commission.
(k) During the period beginning on the date hereof and continuing to and including the Closing
Date (the “Lock-Up Period”), not to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase or otherwise acquire debt securities of the
Company substantially similar to the Securities (other than (i) the Securities, (ii) commercial
paper issued in the ordinary course of business or (iii) securities or warrants permitted with the
prior written consent of the Manager identified in Schedule I with the authorization to release
this lock-up on behalf of the Underwriters); provided that the Company shall not be prohibited from
borrowing under its revolving or bridge credit facilities during the Lock-Up Period.
(l) To prepare a final term sheet relating to the offering of the Securities, containing only
information that describes the final terms of the Securities or the offering in a form consented to
by the Managers, and to file such final term sheet within the period required by Rule 433(d)(5)(ii)
under the
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Securities Act following the date the final terms have been established for the offering of
the Securities.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act (provided that the Company’s
indemnification obligation shall not extend to any free writing prospectus required to be filed by
the Company due to an Underwriter’s breach of Section 7) from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any “issuer information” that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto.
13
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such reasonably incurred fees
and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by
the Manager authorized to appoint counsel under this Section set forth in Schedule I hereto, in the
case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or Section 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative benefits received by the
14
Company on the one hand and the Underwriters on the other hand from the offering of the
Securities or if the allocation provided by clause 8(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions received by the
Underwriters bear to the aggregate public offering price of the Securities as set forth in the
Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amounts of Securities they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above,
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
Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
15
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of any termination of this Agreement, any
investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and acceptance of and payment for any of the Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on, or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange, or the NASDAQ Global Market,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any
over the counter market, (iii) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section
10 by an amount in excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
16
or refuse to purchase Securities and the aggregate principal amount of Securities with respect
to which such default occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase
of such Securities are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the Registration Statement,
in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement (other than by reason of a default by any of the Underwriters
described in the preceding paragraph), or if for any reason the Company shall be unable to perform
its obligations under this Agreement the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering of the Securities
that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such
Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters
is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or
short positions in debt or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
17
12. Entire Agreement. This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this Agreement) that relate to
the offering of the Securities, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
13. Nature of Relationship. The Company acknowledges that in connection with the offering of
the Securities: the Underwriters have acted at arms length, are not agents of, and owe no
fiduciary duties to, the Company or any other person, the Underwriters owe the Company only those
duties and obligations set forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and the Underwriters may have interests that differ from
those of the Company. The Company waives to the full extent permitted by applicable law any claims
it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection
with the offering of the Securities.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
17. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
18
| Very truly yours, UST Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
Accepted as of the date hereof:
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule II hereto
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule II hereto
By:
|
Xxxxxx Brothers Inc. | |||
By: |
/s/ Xxxxx X. Xxxxxx | |||
| Title: Managing Director | ||||
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
/s/ Yurij Slyz | |||
| Title: Vice President |
SCHEDULE I
Managers: |
Xxxxxx Brothers Inc. | |
| Xxxxxx Xxxxxxx & Co. Incorporated | ||
Manager authorized to release |
Xxxxxx Brothers Inc. | |
lock-up under Section 6(k): |
Xxxxxx Xxxxxxx & Co. Incorporated | |
Manager authorized to appoint |
Xxxxxx Brothers Inc. | |
counsel under Section 8(c): |
Xxxxxx Xxxxxxx & Co. Incorporated | |
Indenture: |
Indenture, dated as of May 27, | |
| 1999, as amended by the First | ||
| Supplemental Indenture, to be | ||
| dated as of February 29, 2008, | ||
| between the Company and U.S. Bank | ||
| National Association, as successor | ||
| to State Street Bank and Trust | ||
| Company, as trustee | ||
Trustee: |
U.S. Bank National Association | |
| Corporate Trust Services | ||
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | ||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||
Registration Statement File No.: |
333-149380 | |
Time of Sale Prospectus |
Prospectus, dated February 26, | |
| 2008, relating to the Shelf | ||
| Securities | ||
| Preliminary prospectus supplement, | ||
| dated February 26, 2008, relating | ||
| to the Securities | ||
| Final Term Sheet, dated February | ||
| 26, 2008, as filed pursuant to | ||
| Rule 433 under the Securities Act | ||
Securities To Be Purchased: |
5.75% Senior Notes due 2018 | |
Aggregate Principal Amount: |
$300 million ($300,000,000) | |
Purchase Price: |
98.982% of the principal amount of | |
| the Securities, plus accrued | ||
| interest, if any, from February | ||
| 29, 2008 | ||
Maturity: |
March 1, 2018 |
I-1
Interest Rate: |
5.75% per annum, accruing from | |
| February 29, 2008 | ||
Interest Payment Dates: |
March 1 and September 1, | |
| commencing September 1, 2008 | ||
Closing Date and Time: |
February 29, 2008, 9:30 a.m. | |
Closing Location: |
Xxxxxxxx & Xxxxxxxx LLP | |
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
Address for Notices to Underwriters: |
Xxxxxx Brothers Inc. | |
| 000 Xxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Debt Capital Markets, | ||
| Consumer Retail Group | ||
| CC: General Counsel | ||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||
| 0000 Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attn: Global Capital Markets – | ||
| Debt Coverage Group | ||
| CC: General Counsel | ||
Address for Notices to the Company: |
UST Inc. | |
| 0 Xxxx Xxxxx Xxxx, Xxxxxxxx X | ||
| Xxxxxxxx, Xxxxxxxxxxx 00000 | ||
| Attn: General Counsel |
I-2
SCHEDULE II
| Principal Amount of | ||||
| Securities To Be | ||||
| Underwriter | Purchased | |||
Xxxxxx Brothers Inc. |
$ | 135,000,000 | ||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 135,000,000 | ||
Xxxxx Xxxxxxx and Co. |
$ | 10,000,000 | ||
PNC Capital Markets LLC |
$ | 10,000,000 | ||
RBS Greenwich Capital Markets, Inc. |
$ | 10,000,000 | ||
Total |
$ | 300,000,000 | ||
II-1
