EXHIBIT 1.1
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AUTOZONE, INC.
(a Nevada corporation)
UNDERWRITING AGREEMENT FOR
DEBT SECURITIES
Dated: May 29, 2003
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TABLE OF CONTENTS
PAGE
SECTION 1. Representations and Warranties..................................................................... 3
SECTION 2. Sale and Delivery to Underwriters; Closing......................................................... 10
SECTION 3. Covenants of the Company........................................................................... 11
SECTION 4. Payment of Expenses................................................................................ 13
SECTION 5. Conditions of Underwriters' Obligations............................................................ 14
SECTION 6. Indemnification.................................................................................... 16
SECTION 7. Contribution....................................................................................... 18
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..................................... 20
SECTION 9. Termination........................................................................................ 20
SECTION 10. Default by One or More of the Underwriters......................................................... 21
SECTION 11. Notices............................................................................................ 21
SECTION 12. Parties............................................................................................ 22
SECTION 13. Governing Law and Time............................................................................. 22
SECTION 14. Effect of Headings................................................................................. 22
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AUTOZONE, INC.
(a Nevada corporation)
UNDERWRITING AGREEMENT
FOR DEBT SECURITIES
May 29, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
AutoZone, Inc., a Nevada corporation (the "Company"), proposes to issue
and sell up to $500,000,000 aggregate initial public offering price of its
senior or subordinated debt securities (the "Securities"), from time to time, in
or pursuant to one or more offerings on terms to be determined at the time of
sale.
The Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture (the "Senior
Indenture"), between the Company and Bank One Trust Company, N.A. (as successor
in interest to The First National Bank of Chicago), as trustee (the "Senior
Trustee"), or as subordinated indebtedness (the "Subordinated Debt Securities")
under an indenture (the "Subordinated Indenture," and collectively with the
Senior Indenture, the "Indentures," and each, an "Indenture"), between the
Company and Bank One Trust Company, N.A. (as successor in interest to The First
National Bank of Chicago), as trustee (the "Subordinated Trustee", and
collectively with the Senior Trustee, the "Trustees" and each, a "Trustee").
Each series of Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions and any other variable terms established by
or pursuant to the applicable Indenture.
Whenever the Company determines to make an offering of Securities
through Citigroup Global Markets Inc. and SunTrust Capital Markets, Inc.
(together, the "Representatives"), or through an underwriting syndicate managed
by the Representatives, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, the Representatives and such other underwriters, if any,
selected by the Representatives (the "Underwriters," which term shall include
the Representatives, whether acting as the only Underwriters or as members of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Securities
shall specify the number or aggregate principal
amount, as the case may be, of Securities to be initially issued (the
"Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other than the Representatives acting as co-manager in
connection with such offering, the number or aggregate principal amount, as the
case may be, of Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at which
the Underwritten Securities are to be purchased by the Underwriters, the form,
time, date and place of delivery and payment of the Underwritten Securities and
any other material variable terms of the Underwritten Securities. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives, acting for themselves and, if
applicable, as representatives of any other Underwriters. Each offering of
Underwritten Securities through the Representatives as the only Underwriters or
through an underwriting syndicate managed by the Representatives will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-100205) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and each Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the Company has filed
such post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or
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other information to be included upon pricing in a form of prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Representatives, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as of
each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, each
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or
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omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of
the Prospectus, at the Closing Time and at each Date of Delivery, if
any, neither the Prospectus nor any amendments and supplements thereto
included or will include an untrue statement of a material fact or
omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an 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.
(iii) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally
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accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the financial condition,
earnings, management or business affairs, or any development involving
a prospective material adverse change in the financial condition,
earnings, management or business affairs, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Nevada and has corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and
perform its obligations under, or as contemplated under, this
Underwriting Agreement and the applicable Terms Agreement. 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 so qualify or
be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 0000 Xxx) (each, a "Subsidiary"
and, collectively, the "Subsidiaries"), if any, has been duly organized
and is validly existing as a corporation or limited partnership in good
standing under the laws of the jurisdiction of its incorporation, has
corporate or partnership power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or
partnership, as the case may be, to transact business and is in good
standing in each 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 so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock or partnership interests of
each Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries (with the exception of the preferred stock of
AutoZone Development
5
Corporation of which the Company owns, directly and indirectly, 1,082
shares and others own 118 shares), free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock or partnership interest of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(viii) Capitalization. If the Prospectus contains a
"Capitalization" section, the stockholders' equity and the consolidated
short-term and long-term debt of the Company is as set forth in the
column entitled "Actual" under such section (except for (A) subsequent
issuances thereof, if any, contemplated under this Underwriting
Agreement, (B) pursuant to reservations, agreements or employee benefit
plans referred to or incorporated by reference in the Prospectus, (C)
repurchases of shares of common stock, par value $0.01 per share, of
the Company under its previously announced stock repurchase program,
(D) pursuant to the exercise of convertible securities or options
referred to or incorporated by reference in the Prospectus and (E)
increases not in excess of $50 million in the aggregate in consolidated
long-term debt). Such shares of capital stock have been duly authorized
and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder
of the Company.
(ix) Authorization of this Underwriting Agreement and
Terms Agreement. This Underwriting Agreement has been, and the
applicable Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company.
(x) Authorization of the Securities. The Underwritten
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to any
Securities payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay
or prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture.
(xi) Authorization of the Indentures. Each applicable
Indenture has been, or prior to the issuance of the Debt Securities
thereunder will have been, duly authorized, executed and delivered by
the Company and, upon such authorization, execution and
6
delivery, will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xii) Descriptions of the Underwritten Securities and
Indentures. The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and each applicable Indenture, as of each
Representation Date, conform in all material respects to the statements
relating thereto contained in the Prospectus and are in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the
Company nor any of its Subsidiaries is (a) in violation of its charter
or by-laws, (b) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound,
or to which any of the assets, properties or operations of the Company
or any of its Subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a
Material Adverse Effect or (c) in violation of any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its Subsidiaries or any
of their assets, properties or operations, except for violations that
would not result in a Material Adverse Effect. The execution, delivery
and performance of this Underwriting Agreement, the applicable Terms
Agreement and each applicable Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by
the Company in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, (i) conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or (ii) result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its Subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in any violation of (a) the
provisions of the charter or by-laws of the Company or any of its
Subsidiaries or (b) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its Subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
7
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of the transactions contemplated under the Prospectus,
this Underwriting Agreement, the applicable Terms Agreement or any
applicable Indenture, or the performance by the Company of its
obligations hereunder and thereunder. The aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company of the transactions contemplated under the
Prospectus, this Underwriting Agreement, such Terms Agreement or any
applicable Indenture, except such as have been already made, obtained
or rendered, as applicable.
(xvii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any written notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
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(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind, except (A) as otherwise stated in the Registration Statement and
the Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries. All of the leases and subleases material to
the business of the Company and its subsidiaries considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has
received any written notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
of the continued possession of the leased or subleased premises under
any such lease or sublease where such claim or claims, individually or
in the aggregate, would result in a Material Adverse Effect.
(xix) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(xx) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened, to the Company's knowledge,
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
9
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or to
counsel to the Underwriters in connection with the offering of the Underwritten
Securities and dated a Representation Date shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby on
such Representation Date.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place
as shall be agreed upon by the Representatives and the Company, at 10:00 A.M.
(New York City time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(New York City time) on any given day) business day after the date of the
applicable Terms Agreement (unless postponed in accordance with the provisions
of Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. The
Representatives, each individually and not as representatives of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by the Representatives in The City of
New York not later than 2:00 P.M. (New York City time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
10
SECTION 3. Covenants of the Company. The Company covenants
with the Representatives and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) immediately, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations),
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
to the Underwriters shall object. To the extent the distribution of Underwritten
Securities has been completed, the Company will not be required to provide the
Representatives with reports it is required to file with the Commission under
the 1934 Act.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel to the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably
11
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of outside counsel to the Underwriters or for the Company, to
amend the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such outside counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
12
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its reasonable efforts to effect the
listing of the Underwritten Securities, prior to the Closing Time, on any
national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company will not, without the prior written consent of
the Representatives, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities and any certificates for
the Underwritten Securities, as applicable, to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustees, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel to the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities, if
applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities, and (x) the fees and expenses
of any Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2(l) of Schedule E of the bylaws of the
NASD), if applicable.
13
Except as set forth in clauses (v) and (ix) of this Section 4(a) or upon
termination of this Underwriting Agreement in accordance with the provisions of
Section 5 or 9(b)(i), the Company shall not be obligated to pay any fees or
disbursements of counsel to the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representatives in accordance with the provisions of Section 5
or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel to the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinions of Counsel to the Company. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of (i) Xxxxxx & Xxxxxxx LLP, counsel to the Company, (ii) Vice President,
Assistant General Counsel and Assistant Secretary of the Company and (iii)
Xxxxxxx Brignone, Nevada counsel to the Company, in form and substance
satisfactory to counsel to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Annexes I, II and III hereto or to the effect set forth as an Exhibit
to the applicable Terms Agreement.
(c) Opinion of Counsel to the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion reasonably
satisfactory to the Underwriters, dated as of Closing Time, of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
14
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition, earnings, management or business affairs, or any
development involving a prospective material adverse change in the financial
condition, earnings, management or business affairs, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representatives shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization" (as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations) if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Representatives a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representatives, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company's other
securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
15
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Additional Documents. At Closing Time and at each Date of Delivery,
counsel to the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel to the
Underwriters.
(k) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by the Representatives by
notice to the Company at any time at or prior to the Closing Time (or such Date
of Delivery, as applicable), and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in
16
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that the Company will not be liable to any
Underwriter with respect to any Preliminary Prospectus to the extent that any
such loss, liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of this Underwriting Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Date, a copy of the Final Prospectus,
as then amended or supplemented if (1) the Company has previously furnished
copies thereof, in accordance with Section 3(d) of this Underwriting Agreement
at least 48 hours prior to the Closing Time, to the Underwriters and the loss,
liability, claim, damage or expense of such Underwriter resulted from an untrue
statement or omission of a material fact contained in or omitted from the
Preliminary Prospectus which was corrected in the Final Prospectus as, if
applicable, amended or supplemented prior to the Closing Date and such Final
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person and (2) such failure to give or send such
Final Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have cured the defect giving
rise to such loss, liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the
17
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representatives, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid written request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
written request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall have
requested in writing an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (x) such indemnifying party reimburses such indemnified
party in accordance with such request to the extent it considers such request to
be reasonable; and (y) such indemnifying party provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (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 hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
18
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Underwritten Securities pursuant to the applicable Terms Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The 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 which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten 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 any 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls
19
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Underwritten Securities set forth opposite their respective
names in the applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto
or thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by either of the Representatives upon the giving of 30 days' prior
written notice of such termination to the other parties hereto.
(b) Terms Agreement. The Representatives may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, (1) any material adverse change in
the financial condition, earnings, management or business of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (2) any development involving a prospective
material adverse change in or affecting the financial condition, earnings,
management or business of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, in any case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (ii) there has
occurred any material adverse change in the financial markets in the United
States or, if the Underwritten Securities include Securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, in the
international financial markets, or any outbreak of hostilities or escalation
thereof, a declaration of a national emergency or war by the United States or
other calamity or crisis or any material adverse change or development involving
a prospective material adverse change in national or international political,
financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Representatives, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the Underwritten
Securities, or (iii) trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or
trading generally on the New York Stock Exchange or the over-the-counter market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
such exchange or by such market or by order of the Commission, the NASD or any
other governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities or, if the
20
Underwritten Securities include Securities denominated or payable in, or indexed
to, one or more foreign or composite currencies, by the relevant authorities in
the related foreign country or countries or a material disruption shall have
occurred in commercial banking or securities settlement or clearance services in
the United States.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time or the relevant Date
of Delivery, as the case may be, to purchase the Underwritten Securities which
it or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either the Representatives or the
Company shall have the right to postpone the Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Citigroup Global
Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Investment Banking Legal Department, and SunTrust Capital Markets, Inc., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, attention: ; and
notices to the Company
21
shall be directed to it at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000,
attention: Xxxxx X. Xxxxxxxxx, Esq., Senior Vice President, General Counsel &
Secretary.
SECTION 12. Parties. This Underwriting Agreement and the
applicable Terms Agreement shall each inure to the benefit of and be binding
upon the Company, the Representatives and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Underwriting Agreement or such Terms
Agreement or any provision herein or therein contained. This Underwriting
Agreement and such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. Governing Law and Time. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Representatives and the Company in accordance with its
terms.
Very truly yours,
AUTOZONE, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
By: /s/ Xxxxx X. Xxxx III
--------------------------------------
Name: Xxxxx X. Xxxx III
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx Xxx
----------------------------
Authorized Signatory
SUNTRUST CAPITAL MARKETS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Authorized Signatory
23
Exhibit A
AUTOZONE, INC.
(a Nevada corporation)
Debt Securities
TERMS AGREEMENT
________, 200_
To: AutoZone, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We understand that AutoZone, Inc., a Nevada corporation (the
"Company"), proposes to issue and sell [$__________ aggregate principal amount
of its [senior] [subordinated] debt securities (the "Securities")] ([such
securities also being hereinafter referred to as] the "Underwritten
Securities"). Each provision of the Underwriting Agreement dated May 29, 2003
among the Company, Citigroup Global Markets Inc. and SunTrust Capital Markets,
Inc. is hereby incorporated by reference herein in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provision had been set forth in full herein. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
Subject to the terms and conditions set forth or incorporated by reference
herein, we [the underwriters named below (the "Underwriters")] offer to purchase
[, severally and not jointly,] the [principal amount of] Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below.
[Principal Amount]
Underwriter of Underwritten Securities
Total __________
[$]
===
The Underwritten Securities shall have the following terms:
Title:
Ranking:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Restriction on sale of Securities:
Type of offering: [Fixed] [Variable] price offering
Initial public offering price per Security (if fixed price offering): ____ % of
the principal amount, plus accrued interest [and amortized original issue
discount], if any, from __________.
Purchase price per Security payable by Underwriters: _____ % of principal
amount, plus accrued interest [and amortized original issue discount], if any,
from __________.
Form:
Other terms and conditions:
Closing Time and location:
Please accept this offer no later than ______ P.M. (New York
City time) on _____________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
CITIGROUP GLOBAL MARKETS INC.
By: ________________________________
Authorized Signatory
SUNTRUST CAPITAL MARKETS, INC.
By: ________________________________
Authorized Signatory
[Acting on behalf of themselves and the other
named Underwriters.]
Accepted:
AUTOZONE, INC.
By: ________________________________
Name:
Title:
