KELLOGG COMPANY Underwriting Agreement
Exhibit 1.1
XXXXXXX COMPANY
4.25% Senior Notes due 2013
Underwriting Agreement
March 3, 0000 | ||
Xxxx xx Xxxxxxx Securities LLC Citigroup Global Markets Inc. As representatives of the Several Underwriters |
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c/o
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Banc of America Securities LLC | |
0 Xxxx 00xx Xxxxxx | ||
Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Xxxxxxx Company, a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), $750,000,000 principal amount of its 4.25% Senior Notes
due 2013 (the “Securities”). The Securities will be issued pursuant to an Indenture dated as of
March 15, 2001 between the Company and The Bank of New York Trust Company, N.A. (successor to BNY
Midwest Trust Company), as trustee (the “Trustee”), as supplemented by Supplemental Indenture No. 1
thereto, dated as of March 29, 2001 (as so supplemented, the “Indenture”).
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-72312), including a prospectus (the “Basic Prospectus”),
relating to the debt securities to be issued from time to time by the Company. The Company has also
filed, or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”). The
registration statement, as amended at the time it becomes effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to
herein as the “Registration Statement”; and as used herein, the term “Prospectus” means the Basic
Prospectus as supplemented by the prospectus supplement specifically relating to the Securities in
the form first used to confirm sales (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) of the Securities and the term “Preliminary Prospectus” means the
preliminary prospectus supplement, if any, specifically relating to the Securities together with
the Basic Prospectus. If the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus. References herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein. The terms “supplement,”
“amendment” and
“amend” as used herein as used herein with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed by the Company under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (the “Exchange Act”) subsequent to the date of this Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of this Underwriting Agreement, the
term “Effective Time” means each effective date of the Registration Statement with respect to the
offering of Securities, as determined for purposes of Section 11 of the Securities Act.
At or prior to the time when sales of the Securities will be first made (the “Time of Sale”),
the Company will prepare certain information (collectively, the “Time of Sale Information”) which
information will include the Preliminary Prospectus and which will be identified in Schedule 2
hereto for such offering of Securities as constituting part of the Time of Sale Information.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue
and sell the Securities to the several Underwriters named in Schedule 1 hereto, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriter’s name in
Schedule 1 hereto at a purchase price equal to 99.813% of the principal amount thereof plus accrued
interest, if any, from March 6, 2008 to the Closing Date (as defined below). The Company will not
be obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) Payment for and delivery of the Securities shall be made at the offices of Xxxxx Xxxxx
LLP, Chicago, Illinois at 9:00 A.M., Chicago time, on March 6, 2008, or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “Closing Date.”
(c) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account specified by the Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 12:00 P.M., Chicago time, on the
business day prior to the Closing Date.
(d) The Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arm’s length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent
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investigation and appraisal of the transactions contemplated hereby, and such Underwriters
shall have no responsibility or liability to the Company with respect thereto. Any review by such
Underwriters named in the Underwriting Agreement of the Company, the transactions contemplated
thereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement has become
effective under the Securities Act; no order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, to the Company’s knowledge, no proceeding for that
purpose has been initiated or threatened by the Commission against the Company or related to the
offering; as of the Effective Time, the Registration Statement complied in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or
will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) the information contained in or omitted from the Prospectus, or any amendment
or supplement thereto, in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Underwriters through the Representatives specifically for
inclusion therein. The statistical and market-related data included in the Prospectus are based on
or derived from sources that the Company reasonably believes to be reliable and accurate.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale and at
the Closing Date did not and will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such
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communication by the Company or its agents and representatives (other than a communication
referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule 2 hereto as constituting the Time of Sale Information and (v)
any electronic road show or other written communications, in each case approved in writing in
advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material
respects with the Securities Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed
prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(d) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with
the Commission, conformed in all material respects to the requirements of the Exchange Act, and any
further documents so filed and incorporated or deemed to be incorporated by reference in the
Registration Statement or Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act; and the documents
incorporated by reference in the Registration Statement and the Prospectus, when read together with
the other information in the Registration Statement and the Prospectus, at the time filed did not,
and at the Closing Date will not, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) No Material Adverse Effect. Since the respective dates as of which information is
given in the Registration Statement, the Time of Sale Information and the Prospectus, there has not
been any material adverse change, or any development that would reasonably be likely to result in a
material adverse change, in the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole, whether or
not in the ordinary course of business (a “Material Adverse Change”), in each case, otherwise than
as set forth or contemplated in the Registration Statement, the Time of Sale Information and the
Prospectus.
(f) Organization and Good Standing. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State of Delaware, with
the corporate power and authority to own its properties and conduct its business as described in
the Time of Sale Information and the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to qualify or to be in good standing would not have
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a material adverse effect on the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole
(a “Material Adverse Effect”); each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
with the corporate power and authority to own its properties and conduct its business as described
in the Time of Sale Information and the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure to qualify, to have been duly incorporated or to be in existence or good
standing would not have a Material Adverse Effect.
(g) Capitalization. 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; except as
otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
all of the issued and outstanding capital stock or other ownership interests of each Subsidiary
have been duly authorized and validly issued, are fully paid and non-assessable and (except for
shares necessary to qualify directors or to maintain any minimum number of stockholders required by
law or are immaterial to the Company’s ability to control such Subsidiary) are or, at the Closing
Date will be, owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity except (i) as described in
the Registration Statement, the Time of Sale Information and the Prospectus and (ii) for such
security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial
to the Company and the Subsidiaries taken as a whole.
(h) Due Authorization. This Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(i) The Indenture. The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and constitutes a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles relating to
enforceability.
(j) The Securities. The Securities have been duly authorized and, when issued and
authenticated in the manner provided for in the Indenture and delivered as provided herein, will
have been duly executed, authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, will be entitled to the benefits of the Indenture and will be
enforceable against the Company in accordance with the terms thereof, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to enforceability .
(k) Descriptions of Documents. The Indenture and the Securities will each conform, in
all material respects, to the descriptions thereof in the Registration Statement, the Time of Sale
Information and the Prospectus.
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(l) No Violation or Default. The issue and sale of the Securities and the compliance
by the Company and the Subsidiaries, as applicable, with all of the provisions of the Securities,
the Indenture, this Underwriting Agreement and the consummation of the transactions contemplated
herein and therein, will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Company or any of the
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries is bound or to which any of the property
or assets of the Company or any of the Subsidiaries is subject, except where any such conflict,
breach, violation, default, creation or imposition (individually or in the aggregate) would not
reasonably be expected to have a Material Adverse Effect or a material adverse effect on the
ability of the Company and the Subsidiaries to perform their respective obligations hereunder; nor
will such action result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company, or the charter or bylaws of any of
Xxxxxxx USA Inc., Xxxxxxx Company of Great Britain Limited or Keebler Foods Company (collectively,
the “Significant Subsidiaries”); nor will such action result in any violation of the provisions of
any statute or law or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any of their properties, except
where any such violation (individually or in the aggregate) would not reasonably be expected to
have a Material Adverse Effect or a material adverse effect on the ability of the Company and the
Subsidiaries to perform their respective obligations hereunder.
(m) No Consents Required. No consent, approval, authorization, order, registration,
filing or qualification of or with any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties is required for the issue
and sale of the Securities or the consummation of the other transactions contemplated by the
Indenture and this Underwriting Agreement, except for such consents, approvals, authorizations,
orders, registrations, filings or qualifications which shall have been obtained or made prior to
the Closing Date or as may be required by the securities or blue sky laws of the various states,
the Securities Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the
United States in which the Securities are offered.
(n) Legal Proceedings. Other than as set forth in the Registration Statement, the
Time of Sale Information or the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of the Subsidiaries is a party or of which any property of the Company
or any of the Subsidiaries is the subject which would reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect or which would materially and adversely affect the
consummation of the transactions contemplated under this Underwriting Agreement or the Indenture;
and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) PricewaterhouseCoopers LLP. PricewaterhouseCoopers LLP, who have audited certain
financial statements of each of the Company and its subsidiaries and delivered their reports with
respect to the audited financial statements of each of the Company and its subsidiaries, is an
independent registered public accounting firm with respect to the Company
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within the applicable rules and regulations thereunder adopted by the Commission and the
Public Company Accounting Oversight Board (United States).
(p) Financial Statements. The financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale
Information and Prospectus present fairly in all material respects the financial condition, results
of operations and cash flows of each of the Company and its consolidated subsidiaries as of the
dates and for the periods indicated, comply in all material respects as to form with the applicable
accounting requirements of the Securities Act and the Exchange Act, as applicable, and have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein); the selected financial data
set forth under the captions “Selected Consolidated Financial Data” and “Capitalization” in the
Time of Sale Information and the Prospectus fairly present in all material respects, the
information included therein.
(q) Disclosure Controls. The Company maintains required “disclosure controls and
procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) and the Company’s
“disclosure controls and procedures” are designed to provide reasonable assurance that material
information required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.
(r) Accounting Controls. The Company “maintains a system of internal control over
financial reporting” (as such term is defined in Rule 13a-15(f) of 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; as of December 29, 2007, the Company’s internal control over financial reporting is
effective and the Company is not aware of any changes in its internal control over financial
reporting that have materially affected, or are reasonably likely to materially affect, its
internal control over financial reporting.
(s) Xxxxxxxx-Xxxxx Act. The Company is in compliance in all material respects with
all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith.
(t) Compliance with Environmental Laws. Neither the Company nor any of its
subsidiaries is in violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances (collectively, “Environmental
Laws”), owns or operates any real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environmental laws, which
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violation, contamination, liability or claim would individually or in the aggregate have a
Material Adverse Effect; and the Company is not aware of any pending investigation which might lead
to such a claim.
(u) Title to Intellectual Property. The Company and the Subsidiaries own, possess,
license or have other rights to use, on reasonable terms, all patents, patent applications, trade
and service marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of their respective businesses as now conducted
free and clear of any material security interests, claims, liens or encumbrances, except as would
not reasonably be expected to have a Material Adverse Effect or as set forth in or contemplated in
the Registration Statement, the Time of Sale Information and the Prospectus; and none of the
Intellectual Property, to the knowledge of the Company, conflicts with the valid trademark, trade
name, copyright, patent, patent right or intangible asset of any other person to the extent that
such conflict has or would reasonably be expected to have a Material Adverse Effect.
(v) Investment Company. The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds therefrom as described in
the Time of Sale Information and the Prospectus will not be, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(w) No Stabilization. Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Underwriters, as to whom the Company makes no
representation) has taken, directly or indirectly, any action designed to cause or that constituted
or that might reasonably be expected to cause or constitute, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(x) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(y) Status Under the Securities Act. At the earliest time after a “bona fide offer”
(as used in Rule 164(h)(2) under the Securities Act) of the Notes is first made by the Company or
any Underwriter, the Company was not an “ineligible issuer” (as defined in Rule 405 of the
Securities Act).
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Filings with the Commission. The Company will (i) prepare the Rule 462(b)
Registration Statement, if necessary, in a form approved by the Underwriters and file such Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the
Securities Act on the second day immediately following the date of determination of the
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public offering price of the Securities and, at the time of filing, either pay to 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 Securities Act and (ii) file the Prospectus
in a form approved by the Underwriters with the Commission pursuant to Rule 424 under the
Securities Act not later than the close of business on the second business day following the date
of determination of the public offering price of the Securities or, if applicable, such earlier
time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act. The
Company will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of
Schedule 3 to the Underwriting Agreement) to the extent required by Rule 433 under the Securities
Act; and the Company will furnish copies of the Prospectus to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the second day succeeding the date of this Underwriting
Agreement in such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter
during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus
(including all amendments and supplements thereto and documents incorporated by reference therein)
and each Issuer Free Writing Prospectus (if applicable) as the Representatives may reasonably
request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making,
preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration Statement or the
Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy
of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not
make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement
has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to
the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the
Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus
as then amended or supplemented would include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
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order to make the statements therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Securities and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law.
(g) Blue Sky Compliance. The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions
as the Representatives may reasonably designate and will maintain such qualifications in effect so
long as required for the sale of the Securities; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits in any jurisdiction
where it is not now so subject or subject themselves to taxation in any such jurisdiction where it
is not then so subject. The Company will promptly advise the Representatives of the receipt by the
Company of any notification with respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
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(h) Book-Entry. The Company will cooperate with the Underwriters and use its
reasonable best efforts to permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company, Clearstream and Euroclear.
(i) Clear Market. The Company will not during the period from the date hereof through
and including the Closing Date, without the prior written consent of the Representatives, offer,
sell, contract to sell, grant any other option to purchase or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company
or any Affiliate of the Company), directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the Securities and commercial paper).
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(k) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Time of Sale Information and the Prospectus
under the caption “Use of Proceeds.”
(l) Earning Statement. The Company will make generally available to its security
holders as soon as practicable an earning statement that satisfies the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission promulgated thereunder.
(m) Filing of Exchange Act Documents. The Company will file promptly all reports and
any definitive proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus
Delivery Period.
(n) Record Retention. The Company will, pursuant to reasonable procedures developed
in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
Underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission or is not required to be retained by the Company pursuant to Rule 433, (ii) any Issuer
Free Writing Prospectus listed on Schedule 3 or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus
11
prepared by such underwriter and approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, used any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that the
Underwriters may, at any time, use a term sheet substantially in the form of Schedule 3 hereto
without the consent of the Company
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment to the
Registration Statement is required to be filed under the Securities Act, such post-effective
amendment shall have become effective, and the Representatives shall have received notice thereof,
not later than 5:00 P.M., New York City time, on the date of this Underwriting Agreement; if
applicable, the Rule 462(b) Registration Statement shall have become effective by 10:00 a.m. New
York City time on the business day following the date of this Underwriting Agreement; no order
suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act and in accordance with Section 4(a)
hereof; and all requests by the Commission for additional information shall have been complied with
to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects on the date hereof and on and
as of the Closing Date; and the statements of the Company and its officers made in any certificates
delivered pursuant to this Underwriting Agreement shall be true and correct in all material
respects on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the
execution and delivery of this Underwriting Agreement, and prior to the Closing Date, there shall
not have been any decrease in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the
Securities Act) and no such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive implications of a possible
upgrade), its rating of the Company’s debt securities.
12
(d) No Material Adverse Effect. Subsequent to the execution and delivery of this
Underwriting Agreement, or, if earlier, the date of the latest financial statements included in the
Time of Sale Information and the Prospectus, there has not been any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as set forth or
contemplated in the Time of Sale Information (excluding any amendment or supplement thereto and the
Prospectus, the effect of which is, in the judgment of the Representatives, so material and adverse
as to make it impracticable or inadvisable to market the Securities as contemplated by this
Underwriting Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company who has specific knowledge of the
Company’s financial matters and is satisfactory to the Representatives confirming that such officer
has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus
and, to the best knowledge of such officer, (i) the representations set forth in Sections 3(a) and
3(b) hereof are true and correct, (ii) the other representations and warranties of the Company in
this Underwriting Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Underwriting Agreement and on the Closing
Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives containing statements and
information of the type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus;
provided that the letter delivered on the Closing Date shall use a “cut-off” date no more
than three business days prior to the Closing Date.
(g) Opinion of In-House Counsel for the Company. Xxxx X. Xxxxxxx, Senior Vice
President, General Counsel and Secretary of the Company, shall have furnished to the
Representatives, at the request of the Company, his written opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A hereto.
(h) Opinion of Counsel for the Company. Xxxxxxxx & Xxxxx LLP, counsel for the
Company, shall have furnished to the Representatives, at the request of the Company, their written
opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex B hereto.
(i) Opinion of Counsel for the Underwriters. The Representatives shall have received
on and as of the Closing Date an opinion of Xxxxx Xxxxx LLP, counsel for the Underwriters, with
respect to such matters as the Representatives may reasonably request, and
13
such counsel shall have received such documents and information as they may reasonably request
to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction or order of any federal, state or foreign
court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
(k) Clearance. The Securities shall be eligible for clearance and settlement through
The Depository Trust Company, Clearstream Banking, société anonyme and Euroclear Bank S.A./NV, as
operator of the Euroclear System.
(l) Additional Documents. On or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Underwriting Agreement shall be deemed to be in compliance with the provisions hereof only if they
are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted as such fees and expenses are incurred), joint or
several, that (i) arise out of, or are based upon, any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or are caused by any omission or
alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, not misleading, or (ii) arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information, or are caused by any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of
14
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to such Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment
or supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information, it being
understood and agreed that the only such information consists of the information in the last
paragraph on the cover page of the Prospectus, the information in the table on Page S-23 listing
the “Underwriters” and the “Principal amount of notes” and in the third and sixth paragraphs under
the caption “Underwriting” beginning on page S-23 of the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or asserted against any
person in respect of which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom
such indemnification may be sought (the “Indemnifying Person”) in writing; provided that
the failure to notify the Indemnifying Person shall not relieve it from any liability that it may
have under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate
in such proceeding and shall pay the reasonable fees and expenses of such proceeding and shall pay
the fees and expenses of counsel related to such proceeding as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by the Representatives and any such separate
firm for the Company, its directors, its officers who signed the Registration Statement and any
control persons of the Company shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any
15
proceeding effected without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for reasonable fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed
to
16
include, subject to the limitations set forth above, any reasonable legal or other expenses
incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be required to contribute any
amount in excess of the amount by which the total underwriting discounts and commissions received
by such Underwriter with respect to the offering of the Securities exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
8. Termination. This Underwriting Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if after the execution and delivery of
this Underwriting Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on the New York Stock Exchange or the over-the-counter market;
(ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market or minimum prices shall have been established on the New
York Stock Exchange or in any over-the-counter market; (iii) a general moratorium on commercial
banking activities shall have been declared by federal or New York State authorities or by European
Union authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States or a member of the European Union of a national emergency or war
or any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representatives, is so material and adverse as to make it, in
the judgment of the Representatives, impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the terms and in the manner contemplated by this Underwriting
Agreement, the Time of Sale Information and the Prospectus.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Underwriting Agreement.
If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Securities on such terms. If other persons become obligated or agree
to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or
the Company may postpone the Closing Date for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such
17
changes. As used in this Underwriting Agreement, the term “Underwriter” includes, for all
purposes of this Underwriting Agreement unless the context otherwise requires, any person not
listed in this Underwriting Agreement that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Underwriting
Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any
termination of this Underwriting Agreement pursuant to this Section 9 shall be without liability on
the part of the Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall
not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Underwriting Agreement are consummated or this Underwriting Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, (i) the copying and distribution of the Indenture and the
preparation of the certificates representing the Securities; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, any
Preliminary Prospectus and the Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof; (iii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such copies of any
Preliminary Prospectus Supplement, any Issuer Free Writing Prospectus, any Time of Sale Information
and the Prospectus, and all amendments or supplements to either of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance and sale of the
Securities; (v) the printing (or reproduction) and delivery of this Underwriting Agreement and all
other agreements or documents printed (or reproduced) and delivered in connection with the offering
of the Securities; (vi) the fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the
18
Securities under the securities or blue sky laws of such jurisdictions as the Representatives
may designate (including filing fees) and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related reasonable fees and expenses of counsel for the Underwriters);
(vii) the transportation and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities; (viii) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; (ix) any fees charged by securities rating services for rating
the Securities; (x) the fees and expenses of the Trustee and any agent of the Trustee, including
any paying agent, and the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities; (xi) all expenses and application fees incurred in connection with
any filing with, and clearance of any offering by, the National Association of Securities Dealers,
Inc.; and (xii) all other costs and expenses incurred by the Company incident to the performance by
the Company of its obligations hereunder. It is understood, however, that except as provided in
this Section 10 and Section 7, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel.
(b) If (i) this Underwriting Agreement is terminated pursuant to Section 8, (ii) the Company
for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the
Underwriters decline to purchase the Securities for any reason permitted under this Underwriting
Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Underwriting Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Underwriting Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective successors and the
officers and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Underwriting Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or any provision contained herein. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Underwriting
Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Underwriting
Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment
for the Securities and shall remain in full force and effect, regardless of any termination of this
Underwriting Agreement or any investigation made by or on behalf of the Company or the
Underwriters.
13. Information Provided by Underwriters. At Closing, the Underwriters will deliver a
letter to the Company acknowledging the only information relating to any Underwriter that has been
furnished to the Company in writing by any Underwriter through the Representatives expressly for
use in the Registration Statement and the Prospectus.
19
14. Certain Defined Terms. For purposes of this Underwriting Agreement, (a) except
where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the Securities Act; (b) the term “business day” means any day other than a day on which banks
are permitted or required to be closed in New York City and (c) the term “subsidiary” has the
meaning set forth in Rule 405 under the Securities Act.
15. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form
of telecommunication. Notices to the Underwriters shall be given to the Representatives at Banc of
America Securities LLC, 00 Xxxx 00xx Xxxxxx, XX0-000-00-00, Xxx Xxxx, Xxx Xxxx 00000;
Attention: High Grade Transaction Management/Legal (fax: 000-000-0000) and the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (fax:
000-000-0000). Notices to the Company shall be given to it at Xxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX
00000-0000, (fax: 000-000-0000); Attention: Deputy General Counsel, or if different, to the address
set forth in this Underwriting Agreement.
(c) Governing Law. This Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Amendments or Waivers. No amendment or waiver of any provision of this
Underwriting Agreement, nor any consent or approval to any departure therefrom, shall in any event
be effective unless the same shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Underwriting
Agreement.
(f) Counterparts. This Underwriting Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication), each of which shall
be an original and all of which together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Underwriting Agreement by signing in the space provided below.
Very truly yours, Xxxxxxx Company |
||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: Xxxx X. Xxxxxxx | ||||
Title: | Senior Vice President, General Counsel, Corporate Development and Secretary | |||
Accepted: March 3, 0000
XXXX XX XXXXXXX SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
CITIGROUP GLOBAL MARKETS INC.
By:
|
Banc of America Securities LLC | |
By:
|
/s/ Xxxx Xxxxx | |
Name: Xxxx Xxxxx | ||
Title: Principal | ||
By:
|
Citigroup Global Markets Inc. | |
By:
|
/s/ Xxxxx Xxxxxxxxx | |
Name: Xxxxx Xxxxxxxxx | ||
Title: Managing Director |
Themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
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Schedule 1
Principal | ||||
Amount | ||||
Underwriters | of Notes | |||
Banc of America Securities LLC |
$ | 243,750,000 | ||
Citigroup Global Markets Inc. |
243,750,000 | |||
BNP Paribas Securities Corp. |
22,500,000 | |||
Deutsche Bank Securities Inc. |
45,000,000 | |||
Fifth Third Securities, Inc. |
22,500,000 | |||
Fortis Securities LLC |
22,500,000 | |||
HSBC Securities (USA) Inc. |
45,000,000 | |||
Lloyds TSB Bank plc |
22,500,000 | |||
Mitsubishi UFJ Securities International plc |
22,500,000 | |||
Rabo Securities USA, Inc. |
22,500,000 | |||
SG Americas Securities, LLC |
22,500,000 | |||
The Xxxxxxxx Capital Group, L.P. |
15,000,000 | |||
Total |
$ | 750,000,000 | ||
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Schedule 2
Time of Sale Information
1. | The term sheet set forth in Schedule 3 hereto. |
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Schedule 3
Pricing Term Sheet
Xxxxxxx Company
$750,000,000 4.25% Notes due 2013
Issuer: |
Xxxxxxx Company | |
Size: |
$750,000,000 | |
Maturity: |
Xxxxx 0, 0000 | |
Xxxxxx: |
4.25% | |
Interest Payment Dates: |
March 6 and September 6, commencing September 6, 2008 | |
Price: |
99.813% of face amount | |
Yield to maturity: |
4.292% | |
Spread to Benchmark Treasury: |
180 bps | |
Benchmark Treasury: |
UST 2-3/4% due February 28, 2013 | |
Benchmark Treasury Price and Yield: |
101.6+; 2.492% | |
Redemption Provisions: |
||
Make-whole call |
At any time at a discount rate of Treasury plus 30 basis points | |
Settlement: |
T+ 3; March 6, 2008 | |
CUSIP: |
487836 BA 5 | |
Ratings (Xxxxx’x/S&P/Fitch): |
A3/BBB+/BBB+ | |
Book-Running Managers: |
Banc of America Securities LLC | |
Citigroup Global Markets Inc. | ||
Co-Managers: |
BNP Paribas Securities Corp. | |
Deutsche Bank Securities Inc. | ||
Fifth Third Securities, Inc. | ||
Fortis Securities LLC | ||
HSBC Securities (USA) Inc. | ||
Lloyds TSB Bank plc | ||
Mitsubishi UFJ Securities International plc | ||
Rabo Securities USA, Inc. | ||
SG Americas Securities, LLC | ||
The Xxxxxxxx Capital Group, L.P. |
Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
or e-mailing Banc of America Securities LLC
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at 1-800-294-1322 or
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx or by calling Citigroup Global Markets Inc. toll free
at 1-877-858-5407.
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers were automatically generated as a result of this
communication being sent via Bloomberg or another email system.
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