CAMPBELL SOUP COMPANY Debt Securities Underwriting Agreement Standard Provisions
Exhibit
1.1
EXECUTION
COPY
XXXXXXXX SOUP
COMPANY
Debt
Securities
Underwriting Agreement
Standard Provisions
From time to time,
Xxxxxxxx Soup Company, a New Jersey corporation (the “Company”), may enter into
one or more underwriting agreements in the form of Annex A hereto that
incorporate by reference these Standard Provisions (collectively with these
Standard Provisions, an “Underwriting Agreement”) that provide for the sale of
the securities designated in such Underwriting Agreement (the “Securities”) to
the several Underwriters named therein (the “Underwriters”), for whom the
Underwriter(s) named therein shall act as representative (the “Representative”).
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this “Agreement”. The Securities will be issued
pursuant to an indenture (the “Indenture”) dated as of November 24, 2008 between
the Company and The Bank of New York Mellon, as trustee (the
“Trustee”).
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. 333-155626), 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
became effective, including the information, if any, deemed pursuant to Rule
430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness, 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 (or made available upon
request of purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities and the term
“Preliminary Prospectus” means the preliminary prospectus supplement
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 the Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of this
Agreement, the term “Effective Time” means the effective date of the
Registration Statement with respect to the offering of Securities, as determined
for the Company pursuant to Section 11 of the Securities Act and Item 512 of
Regulation S-K, as applicable.
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 be identified in Schedule 3 to the
Underwriting Agreement 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 the
Underwriting Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment
for and delivery of the Securities will be made at the time and place set forth
in the Underwriting Agreement. The time and date of such payment and delivery is
referred to herein as the “Closing Date”.
(c) 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 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:
- 2 -
(a) Registration Statement and
Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. 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 or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or threatened
by the Commission; 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 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 and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii)
any statements or omissions in the Registration Statement and the Prospectus and
any amendment or supplement thereto made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use
therein.
(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 Representative 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 communication by
the Company or its agents and
- 3 -
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 3 to the Underwriting Agreement as
constituting the Time of Sale Information and (v) any electronic road show or
other written communications, in each case approved in advance by the
Representative. 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
Representative 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
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(e) No Violation or
Default. 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 Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, 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 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 properties, which conflict, breach, default or
violation would have a material adverse effect on the consolidated financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries.
(f) No Consents
Required. No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body of the United States of America or the State of New Jersey is required for
the issuance and sale of the Securities or the consummation by the Company of
the transactions
- 4 -
contemplated by this
Agreement or the Indenture except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters.
(g) Internal Control Over Financial
Reporting. 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; and the internal control over consolidated financial
reporting of the Company is effective and the Company is not aware of any
material weaknesses in its internal control over financial
reporting.
(h) Disclosure Controls and
Procedures. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating to
the Company is made known to the Company’s principal executive officer and
principal financial officer by others within the Company and its subsidiaries;
and such disclosure controls and procedures are effective.
4. Further Agreements of the
Company. The Company covenants and agrees with each
Underwriter that:
(a)
Filings with the
Commission. The Company will (i) pay the registration fees for
this offering within the time period required by Rule 456(b)1(i) under the
Securities Act (without giving effect to the proviso therein) and in any event
prior to the Closing Date 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
4 to the Underwriting Agreement) to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the Prospectus and each
Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as
the Representative 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
- 5 -
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 Representative 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 Representative 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 Representative
reasonably objects unless, in the case of a filing, the Company is required by
law to make such filing.
(d) Notice to the
Representative. The Company will advise the Representative
promptly (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 receipt by
the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; 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
- 6 -
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 Representative 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 any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representative 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) 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 covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement.
(h) 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 a result of use by such underwriter,
would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed
on Schedule 3 to the Underwriting Agreement or prepared pursuant to Section 3(c)
or Section 4(c) above (including any
- 7 -
electronic road
show), or (iii) any free writing prospectus 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) notwithstanding
the foregoing the Underwriters may use a term sheet substantially in the form of
Schedule 4 to the Underwriting Agreement without the consent of the Company;
and
(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 Representative shall have
received notice thereof, not later than 5:00 P.M., New York City time, on the
date of the 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 the Underwriting Agreement; no order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Securities Act shall be pending before, or to the knowledge
of the Company, threatened by the Commission; the Prospectus and each Issuer
Free Writing Prospectus shall have been timely filed with the Commission under
the Securities Act (in the case of an Issuer Free Writing Prospectus, to the
extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof.
(b) Officer's
Certificate. The Representative shall have received on the
Closing Date a certificate signed by two officers of the Company satisfactory to
the Representative (i) as to the accuracy of the representations and warranties
of the Company herein at and as of the Time of Sale and at and as of the Closing
Date, (ii) as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Closing Date, (iii) at and as of
the Time of Sale and at and as of the Closing Date, as to the absence subsequent
to the date of the most recent financial statements in or incorporated by
reference in the Registration Statement, the Time of Sale Information and the
Prospectus, of any material adverse change in the business, properties and
financial position or results of operation of the Company except as set forth in
or contemplated by the Registration Statement, the Time of Sale Information or
the Prospectus, as amended and supplemented, as to the matters set forth in
subsection (a) of this Section, and (iv) as to such other matters as the
Representative may reasonably request.
- 8 -
(c) Comfort
Letters. On the date of this Agreement and on the Closing
Date, PricewaterhouseCoopers LLP shall have furnished to the Representative, 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 Representative, 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.
(d) Opinion and 10b-5 statement of Counsel of the
Company. Xxxxx Xxxxxxxx, Vice President – Legal of the
Company, shall have furnished to the Representative, at the request of the
Company, her written opinion and 10b-5 Statement, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative, to the effect set forth in Annexes B-1 and B-2
hereto.
(e) Opinion and 10b-5 Statement of Counsel for the
Underwriters. The Representative shall have received on and as
of the Closing Date an opinion and 10b-5 statement of White & Case LLP,
counsel for the Underwriters, with respect to such matters as the Representative
may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(f) Opinion of Counsel for the
Company. The Representative shall have received an opinion, in
form and substance reasonably satisfactory to the Representative, dated the
Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, to the
effect set forth in Annex C hereto.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriters. The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information,
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be
- 9 -
stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information,
the Registration Statement or the Prospectus or any such amendment or supplement
(i) in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative specifically for use
therein or (ii) contained in that part of the Registration Statement
constituting the Statement of Eligibility and Qualification under the Trust
Indenture Act (Form T-1) of the Trustee.
(b) Indemnification of the
Company. Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Time of Sale Information, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Time of Sale Information, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Notice and
Procedures. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action
(including any governmental investigation), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be
- 10 -
counsel to the
indemnifying party or represent two or more parties if such representation would
be inappropriate due to actual or potential differing interests between or among
them), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) Contribution. If
the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Securities to which such loss, claims, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such
Underwriter. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriter on the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of
- 11 -
the
equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) Non-Exclusive
Remedies. The obligations of the Company under this Section 7
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of any Underwriter and to each person, if any, who controls any Underwriter
within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
8. Termination. This
Agreement may be terminated in the discretion of the Representative, by notice
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date there shall have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or any material disruption in securities settlement or
clearance systems; or (iii) the outbreak or escalation of hostilities or any
calamity or crisis on or after the date of this Agreement if the effect of any
such event specified in this clause (iii) in the reasonable judgment of the
Representative is material and adverse to the market for the Securities and
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
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
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
- 12 -
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 changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in the 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 Agreement shall
terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this 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 Agreement are consummated or this
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 costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes
- 13 -
payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and
the Prospectus (including all exhibits, amendments and supplements thereto) and
the distribution thereof; (iii) the costs of reproducing and distributing the
Indenture, the Securities and the Underwriting Agreement (collectively, the
“Transaction Documents”); (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) any fees charged by rating agencies for rating
the Securities; and (vi) the fees and expenses of the Trustee and any paying
agent (including related fees and expenses of any counsel to such
parties).
(b) If
(i) this 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 Agreement (other than as permitted by Section 9), the Company agrees
to reimburse the Underwriters for all out-of-pocket costs and expenses approved
in writing by the Representative (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and 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 Agreement is intended or shall be construed
to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision 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 Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
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 Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
13. Certain Defined
Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act.
14. Miscellaneous. (a) Authority of the
Representative. Any action by the Underwriters hereunder may
be taken by the Representative on behalf of the
- 14 -
Underwriters, and any
such action taken by the Representative 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 Representative at the address set forth in the Underwriting
Agreement. Notices to the Company shall be given to it at Xxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxx, 00000-0000, (fax:(000) 000-0000); Attention:
Corporate Secretary, or if different, to the address set forth in the
Underwriting Agreement.
(c) Governing
Law. This 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
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
Agreement.
- 15 -
Annex A
Underwriting
Agreement
January
14, 2009
Barclays Capital
Inc.
X.X. Xxxxxx
Securities Inc.
and
UBS
Securities LLC
X.X. Xxxxxx
Securities Inc.
As
Representative of the
several
Underwriters listed
in
Schedule 1 hereto
c/o
X.X. Xxxxxx Securities Inc.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies and
Gentlemen:
Xxxxxxxx Soup
Company, a New Jersey 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 representative (the “Representative”), $300,000,000
principal amount of its 4.500% Senior Notes due 2019 having the terms set forth
in Schedule 2 hereto (the “Securities”). The Securities will be
issued pursuant to an indenture (the “Indenture”) dated as of November 24, 2008
between the Company and The Bank of New York Mellon, as trustee (the
“Trustee”).
The
Company agrees to issue and sell the Securities to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in Schedule 1 hereto at a price equal to 98.635% of the
principal amount thereof plus accrued interest, if any, from January 20, 2009 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.
- 16 -
The
Company understands that the Underwriters intend to make a public offering of
the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representative is advisable, and initially to offer the
Securities on the terms set forth in the Time of Sale Information and the
Prospectus. Schedule 3 hereto sets forth the Time of Sale Information
made available at the Time of Sale. The Company acknowledges and
agrees that the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Securities purchased by it to or through any Underwriter.
Payment for and
delivery of the Securities shall be made at the offices of White & Case LLP
at 10:00 A.M., New York City time, on January 20, 2009, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in
writing.
Payment for the
Securities shall be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representative 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 Representative not later than
1:00 P.M., New York City time, on the business day prior to the Closing
Date.
The
Company and the Underwriters acknowledge and agree that the only information
relating to any Underwriter that has been furnished to the Company in writing by
any Underwriter through the Representative 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 consists of the
following: (a) the second sentence of the third paragraph of text
under the caption “Underwriting” in the preliminary prospectus supplement and
the prospectus supplement relating to the Securities, concerning market making
by the Underwriters, (b) the fourth paragraph of text under the caption
“Underwriting” in the preliminary prospectus supplement and the prospectus
supplement relating to the Securities, concerning the terms of the offering by
the Underwriters and (c) the sixth paragraph of text under the caption
“Underwriting” in the preliminary prospectus supplement and the prospectus
supplement relating to the Securities, concerning short sales and stabilization
by the Underwriters, and related matters.
All
provisions contained in the document entitled Xxxxxxxx Soup Company Debt
Securities Underwriting Agreement Standard Provisions are incorporated by
reference herein in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in such Underwriting
Agreement Standard Provisions is otherwise defined herein, the definition set
forth herein shall control.
- 17 -
This Agreement may
be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all
of which together shall constitute one and the same instrument.
If
the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
|
Very truly
yours,
|
||||
|
XXXXXXXX SOUP
COMPANY
|
||||
|
By
|
/s/ B. Xxxxx Xxxxx | |||
| Name: |
B. Xxxxx
Xxxxx
|
|||
|
|
Title: |
Senior Vice
President - Chief Financial Officer and Chief
Administrative Officer
|
||
|
By
|
/s/ Xxxxxxx X. X'Xxxx | |||
|
Name:
|
Xxxxxxx X.
X'Xxxx
|
|||
| Title: |
Vice President
- Treasurer
|
|||
Accepted: January
14, 2009
X.X. XXXXXX
SECURITIES INC.
For itself and
on behalf of the
several
Underwriters listed
in Schedule 1
hereto.
|
By
|
/s/ Xxxxx
Xxxxxx
|
|
Authorized
Signatory
|
- 18 -
Schedule
1
|
Underwriter
|
Principal
Amount
|
||||
|
Barclays
Capital Inc.
|
$75,000,000
|
||||
|
X.X. Xxxxxx
Securities Inc.
|
$75,000,000
|
||||
|
UBS Securities
LLC
|
$75,000,000
|
||||
|
Banc of
America Securities LLC
|
$17,000,000
|
||||
|
Citigroup
Global Markets Inc.
|
$17,000,000
|
||||
|
Wachovia
Capital Markets, LLC
|
$17,000,000
|
||||
|
Xxxxxx Xxxxxxx
& Co. Incorporated
|
$10,000,000
|
||||
|
PNC Capital
Markets LLC
|
$10,000,000
|
||||
|
The Xxxxxxxx
Capital Group, L.P.
|
$4,000,000
|
||||
|
Total
|
$300,000,000
|
- 19 -
Schedule
2
Representative(s)
and Address(es) for Notices:
X.X. Xxxxxx
Securities Inc.
000
Xxxx Xxxxxx 0xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Transaction
Execution Group
Telephone
No: 000-000-0000
Facsimile
No: 000-000-0000
Certain Terms of the
Securities:
|
Title of
Securities:
|
4.500% Senior Notes due 2019 |
|
Aggregate Principal Amount of
Securities: $300,000,000
|
|
|
Maturity Date:
|
February 15, 2019 |
|
Interest Rate:
|
4.500% |
|
Interest Payment
Dates:
|
February 15 and August 15, commencing August 15, 2009 |
|
Record Dates:
|
February 1 and August 1 |
Redemption
Provisions:
The
Securities will be redeemable, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of such Securities or (ii) as determined by a Quotation Agent
(as defined in the Prospectus), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate (as defined in the
Prospectus), plus 35 basis points plus accrued interest thereon to the date of
redemption.
- 20 -
Schedule
3
Time
of Sale Information
|
Pricing Term Sheet
dated
|
January 14, 2009 |
|
Preliminary Prospectus
dated
|
January 14, 2009 |
- 21 -
Schedule
4
Xxxxxxxx
Soup Company
$300,000,000
10-Year
Fixed Rate Senior Unsecured Notes
January
14, 2009
Term
Sheet
|
Issuer:
|
Xxxxxxxx
Soup Company
|
|
Issue
Ratings:
|
A2
(Xxxxx’x) / A (S&P) / A (Fitch)
|
|
Size:
|
$300,000,000
|
|
Security
Type:
|
SEC
Registered Senior Unsecured Notes
|
|
Maturity:
|
February
15, 2019
|
|
Coupon:
|
4.500%
|
|
Public
Offering Price:
|
99.285%
|
|
Yield
to Maturity:
|
4.589%
|
|
Spread
to Benchmark Treasury:
|
237.5
bps
|
|
Benchmark
Treasury:
|
3.750%
due November 15, 2018
|
|
Treasury
Yield:
|
2.214%
|
|
Coupon
Dates:
|
The
15th day of each February and August
|
|
First
Coupon:
|
August
15, 2009
|
|
Settlement:
|
T+3
(January 20, 2009)
|
|
Optional
Redemption:
|
Make-Whole
Call at Treasury + 35 bps
|
|
Day
Count:
|
30/360
|
|
CUSIP:
|
000000XX0
|
|
Joint
Book-Running Managers:
|
Barclays
Capital Inc.
X.X.
Xxxxxx Securities Inc.
UBS
Securities LLC
|
|
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 Barclays Capital Inc.
toll free at 0-000-000-0000, Ext. 2663, X.X. Xxxxxx Securities Inc. collect at
0-000-000-0000 or UBS Securities LLC toll free at 0-000 000-0000, Ext.
561-3884.
- 22 -
Annex
B-1
[Form of Opinion of
Counsel of the Company]
(1) The
Company is duly incorporated and validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus as amended or supplemented.
(2) To
the best knowledge of such counsel, there are no pending or threatened legal or
governmental proceedings required to be described in the Registration Statement,
the Time of Sale Information or the Prospectus as amended or supplemented which
are not described therein as required in all material respects.
(3) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(4) The
issuance and sale of the Securities have been duly authorized by the Company and
the Securities have been duly executed and delivered by the
Company.
(5) The
Indenture has been duly authorized, executed and delivered by the
Company.
(6) The
issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, 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 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 properties, which conflict, breach, default or
violation would have a material adverse effect on the consolidated financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries.
(7) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States of America or
the State of New Jersey is required for the issuance and sale of the Securities
or the consummation by the Company of the transactions contemplated by this
Underwriting Agreement or the Indenture, except such as have been obtained under
the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or blue sky laws
- 23 -
of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
(8) The
Securities and the Indenture conform to the descriptions thereof in the
Prospectus.
(9) The
Registration Statement is an “automatic shelf registration statement” as defined
under Rule 405 under the Securities Act that has been filed with the Commission
not earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration statement pursuant
to Rule 401(g)(2) under the Securities Act has been received by the Company;
each of the Preliminary Prospectus and the Prospectus was filed with the
Commission pursuant to subparagraph (2) of Rule 424(b) under the Securities Act
on January __, 2009 and on January __, 2009 respectively; and no order
suspending the effectiveness of the Registration Statement has been issued, no
notice of objection of the Commission to the use of such registration statement
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or in connection with the offering has been
initiated or, to the best knowledge of such counsel, threatened by the
Commission.
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel of the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 24 -
Annex
B-2
[Form of 10b-5
Statement of Counsel of the Company]
(1) The
Registration Statement and the Prospectus (including all incorporated documents)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder; and
(2) nothing
has come to the attention of such counsel that causes such counsel to believe
that, insofar as relevant to the offering of the Securities:
(a) on
the date of the Underwriting Agreement, the Registration Statement contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading,
(b) at
___ P.M. on January __, 2009, the Time of Sale Information contained any untrue
statement of a material fact or omitted 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, or
(c) the
Prospectus or any amendment or supplement thereto as of the date of the
Underwriting Agreement or as of the date hereof contained or contains any untrue
statement of a material fact or omitted or omits 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.
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel of the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 25 -
Annex C
[Form of Opinion of
Counsel for the Company]
(1) The
Indenture became qualified under the Trust Indenture Act of 1939, as amended,
upon the filing of the Company’s registration statement on Form S-3 (File No.
333-155626) with the Commission on November 24, 2008 pursuant to Rule 462(e)
under the Securities Act of 1933, as amended.
(2) Assuming
the due authorization, execution and delivery by the Company, the Indenture is a
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, provided that such counsel need not express any
opinion as to the enforceability of any waiver of rights under any usury or stay
law.
(3) Assuming
the due authorization of the Securities by the Company, the Securities, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture pursuant to which such Securities are to be issued,
provided that such counsel need not express any opinion as to the enforceability
of any waiver of rights under any usury or stay law.
(4) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, the Indenture, the Securities and the Underwriting
Agreement (collectively, the “Documents”) will not contravene any provision of
the laws of the State of New York or any federal law of the United States of
America that in such counsel’s experience is normally applicable to general
business corporations in relation to transactions of the type contemplated by
the Documents, provided that such counsel need not express any opinion as to
federal or state securities laws.
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel for the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 26 -
