The Procter & Gamble Company Debt Securities Underwriting Agreement [DATE]
Exhibit (1)(a)
The Procter & Xxxxxx Company
Debt Securities
Underwriting Agreement
Debt Securities
Underwriting Agreement
[DATE]
To the Underwriters named in the
respective Pricing Agreement(s)
hereinafter described
respective Pricing Agreement(s)
hereinafter described
Dear Sirs/Mesdames:
From time to time The Procter & Xxxxxx Company (the “Company”) proposes to enter into one or
more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) certain of its debt securities (the
“Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Designated Securities”), less the principal amount of Designated Securities
covered by Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may be
specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, any
Designated Securities to be covered by Delayed Delivery Contracts being herein sometimes referred
to as “Contract Securities” and the Designated Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being herein sometimes
referred to as “Underwriters’ Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the
“Indenture”) identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto will act as
representatives (the “Representatives”). The term “Representatives” also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not be construed
as an obligation of the Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities. The obligation of the Company to issue and
sell any of the Securities and the obligation of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated
Securities, the names of the Representatives of such Underwriters, the principal amount of such
Designated Securities to be purchased by each Underwriter and whether any of such Designated
Securities shall be covered by Delayed Delivery Contracts (as defined in Section 3 hereof) and the
commission payable to the Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. The Pricing Agreement
also may specify such additional terms and conditions as the parties thereto may agree. The
Pricing Agreement shall include a Schedule III specifying (a) materials other than the Pricing
Prospectus (as defined below) that comprise the Pricing Disclosure Package (as defined below) and
(b) Issuer Free Writing Prospectuses (as defined below) not included in the Pricing Disclosure
Package. A Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications or any other
rapid transmission device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, the Underwriters that:
(a) An “automatic registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333- ) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the “Commission”) not earlier than three years prior to the date of the
Pricing Agreement in the form heretofore delivered or to be delivered to the
Underwriters; such registration statement and any post-effective amendment thereto
became effective upon filing; and no stop order suspending the effectiveness of
such registration statement or any part thereof has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission, 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 Act has been
received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Designated Securities, which has heretofore been or is
required to be filed with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the various parts of such
registration statement, including all documents incorporated by reference therein
and exhibits thereto but excluding Form T-1 and including any prospectus supplement
relating to the Designated Securities that is or shall be filed with the Commission
pursuant to Rule 424(b) under the Act and deemed by virtue of Rule 430B under the
Act to be part of such registration statement, each such part as amended at the
time such
registration statement became effective (or at the time deemed to be a new
effective date of such registration statement pursuant to Rule 430B under the Act),
being hereinafter collectively called the “Registration Statement”; the Basic
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Prospectus, as amended and supplemented by any Preliminary Prospectus immediately
prior to the Applicable Time (as defined in Section 2(b) hereof), is hereinafter
called the “Pricing Prospectus”; the final prospectus relating to the Designated
Securities in the form in which it shall be filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(b) hereof is hereinafter
called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, which were filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) on or before the date of this Agreement, or
the issue date of such Basic Prospectus, Pricing Prospectus, Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
with respect to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after the date of this Agreement, or the issue date of the Basic Prospectus,
the Pricing Prospectus, any Preliminary Prospectus or Prospectus, as the case may
be, and prior to the completion of the offering, under the Exchange Act, and deemed
to be incorporated by reference therein; and any “issuer free writing prospectus”
as defined in Rule 433 under the Act relating to the Designated Securities is
hereinafter called an “Issuer Free Writing Prospectus” );
(b) For the purposes of this Agreement and the Pricing Agreement, the “Applicable
Time” shall be such time as specified in the Pricing Agreement; as of the
Applicable Time, neither (x) the Pricing Prospectus as supplemented by those Issuer
Free Writing Prospectuses and other documents and information listed in Schedule
III(a) to the Pricing Agreement (including any final term sheet), taken together
(collectively, the “Pricing Disclosure Package”), nor (y) any Issuer Free Writing
Prospectus listed on Schedule III(b) to the Pricing Agreement when considered
together with the Pricing Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty shall not
apply to statements or omissions made in the Pricing Disclosure Package or any
Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein; and each Issuer Free Writing
Prospectus listed on Schedule III(a) or Schedule III(b) to the Pricing Agreement as
of its issue date and at all subsequent times through the completion of the offer
and sale of the Designated Securities to which such Issuer Free Writing Prospectus
relates, did not, does not and will not conflict with the information contained in
the Registration Statement, the Pricing Prospectus or the Prospectus;
(c) The documents incorporated by reference in the Pricing Prospectus, the
Prospectus and any amendment or supplement thereto, when they were filed with
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the Commission, conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference in the Pricing Prospectus, the Prospectus and any amendment or supplement
thereto, when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented related to such
Securities;
(d) No order preventing or suspending the use of the Basic Prospectus, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission and no proceeding for that purpose has been initiated
or threatened by the Commission; the Registration Statement, on the effective date
(as such effective date is defined in Rule 158(c) under the Act) conformed in all
material respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”) and the respective rules and
regulations of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and, at the time the
Prospectus is filed with the Commission and at the Time of Delivery (as defined in
Section 4 hereof), the Prospectus will conform in all material respects with the
Act and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of the Designated Securities
through the Representatives expressly for use in the Registration Statement or the
Prospectus, as the case may be;
(e) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Pricing Prospectus and the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the Company and its subsidiaries considered as
a whole, otherwise than as set forth or contemplated in the Pricing Prospectus and
the Prospectus; and, since the respective dates as of which information is
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given in the Registration Statement, the Pricing Prospectus and the Prospectus, there has
not been any material change in the capital stock or long-term debt of the Company
or in the consolidated capitalization of the Company and its consolidated
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or results of operations of
the Company and its consolidated subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Pricing Prospectus and the Prospectus;
(f) The Securities have been duly authorized by the Company, and, when Designated
Securities are issued and delivered at the Time of Delivery (as defined in Section
4 hereof) pursuant to this Agreement and the Pricing Agreement with respect to such
Designated Securities and, in the case of any Contract Securities, pursuant to
Delayed Delivery Contracts with respect to such Contract Securities, such
Designated Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles, and entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration Statement;
(g) The Indenture has been duly authorized by the Company and at the Time of
Delivery will be duly qualified under the Trust Indenture Act and will constitute a
valid and legally binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles; and the Securities
and the Indenture will conform to the descriptions thereof in the Pricing
Disclosure Package and Prospectus, as amended or supplemented;
(h) This Agreement has been duly authorized, executed and delivered by the Company.
(i) In the event any of the Securities are purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly authorized by the
Company and, when executed and delivered by the Company and the purchaser named
therein, will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights
and to general equity principles; and any Delayed Delivery Contracts will conform
to the description thereof in the Pricing Disclosure Package and Prospectus, as
amended or supplemented;
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(j) The issue and sale of the Securities and the compliance by the Company with all
of the provisions of the Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and any Pricing Agreement, and the consummation
of the transactions herein and therein 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 or any of its domestic Significant
Subsidiaries (as defined below) is a party or by which the Company or any of its
domestic Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its domestic Significant Subsidiaries is subject,
nor will such action result in any violation of the provisions of the Amended
Articles of Incorporation, Regulations or By Laws of the Company or any applicable
statute or any applicable order, rule or regulation known to the Company of any
court or governmental agency or body having jurisdiction over the Company or any of
its domestic Significant Subsidiaries or any of its or their properties; and no
consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the other transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture or any
Delayed Delivery Contract, except such as have been, or will have been prior to the
Time of Delivery, obtained under the 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 in connection with the purchase
and distribution of the Securities by the Underwriters; (the term “Significant
Subsidiary” as used herein has the meaning set forth in Rule 1-02 of Regulation S-X
under the Exchange Act);
(k) There are no legal or governmental proceedings pending to which the Company or
any of its domestic Significant Subsidiaries is a party or of which any property of
the Company or any of its domestic Significant Subsidiaries is subject other than
(i) as set forth in the Pricing Prospectus and the Prospectus and (ii) legal or
governmental proceedings which would not in the aggregate reasonably be expected to
have a material adverse effect on the financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries considered as a whole;
and no such proceedings are known by the Company to be threatened or contemplated
by governmental authorities or threatened by others; and
(l) (A)(i) At the time of filing the Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was or will be by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule
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163(c) under the Act) makes any offer relating to the Designated Securities in
reliance on the exemption of Rule 163 under the Act, the Company was or is a
“well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at (i)
the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Act) with respect to the Designated Securities and (ii) the time
of execution of this Agreement, the Company was not and is not an “ineligible
issuer” as defined in Rule 405 under the Act.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of the Underwriters’ Securities, the several
Underwriters propose to offer the Underwriters’ Securities for sale upon the terms and conditions
set forth in the Pricing Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable to any Designated
Securities that the Underwriters are authorized to solicit offers to purchase Designated
Securities from the Company pursuant to delayed delivery contracts (herein called “Delayed
Delivery Contracts”), substantially in the form of Annex II attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation therefor the Company
will pay to the Representatives for the accounts of the Underwriters, at the Time of Delivery,
such commission, if any, as may be set forth in such Pricing Agreement. Delayed Delivery
Contracts, if any, are to be with investors of the types described in the Prospectus and subject
to other conditions therein set forth. The Underwriters will not have any responsibility in
respect of the validity or performance of any Delayed Delivery Contracts.
The total principal amount of Underwriters’ Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later than 3:30 p.m., New
York City time, on the third business day preceding the Time of Delivery specified in the
applicable Pricing Agreement (or such other time and date as the Representatives and the Company
may agree upon in writing) a written notice setting forth the principal amount of Contract
Securities.
4. Underwriters’ Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representatives may request upon at least
forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by such Underwriter or
on its behalf of the purchase price therefor in the funds and in the manner specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called the “Time of Delivery” for such
Securities.
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Concurrently with the delivery of and payment for the Underwriters’ Securities, the Company
will deliver to the Representatives for the accounts of the Underwriters a check payable to the
order of the party designated in the Pricing Agreement relating to such Securities in the amount
of any compensation payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and in the Pricing Agreement relating to such
Securities.
5. The Company agrees with each of the Underwriters of any Designated Securities:
(a) To make no further amendment or any supplement to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Prospectus after the date
of the Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities to which the Representatives for such Securities,
promptly after reasonable notice thereof, shall have reasonably disapproved; to
advise the Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus (or, in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or has
become effective or any amendment or supplement to any Issuer Free Writing
Prospectus or the Prospectus has been filed or mailed for filing, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any preliminary prospectus or other prospectus relating to the Securities,
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 Act, of the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any preliminary prospectus or other
prospectus relating to the Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus and
to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment
or supplement to such form of prospectus to which the
Representatives for such Securities, promptly after reasonable notice thereof,
shall have reasonably disapproved;
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(c) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not be required
to (i) qualify as a foreign corporation, (ii) file a general consent to service of
process in any jurisdiction, or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject;
(d) To furnish the Underwriters with written or electronic copies of the Pricing
Prospectus and the Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of which
the Pricing Disclosure Package or the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Pricing Disclosure Package or
Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Pricing Disclosure
Package or the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Pricing Disclosure Package or the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act or the
respective rules thereunder, to notify the Representatives of such event and upon
their request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written or electronic
copies as the Representatives may from time to time reasonably request of an
amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing
Disclosure Package or the Prospectus which will correct such statement or omission
or effect such compliance;
(e) To make generally available to its security holders as soon as practicable, but
in any event not later than eighteen months after the effective date of the
Registration Statement (as such effective date is defined in Rule 158(c) under the
Act), an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including at the option of the Company Rule 158);
(f) During the period beginning on the date of the Pricing Agreement for such
Designated Securities and continuing to and including the earlier of (i) the
termination of trading restrictions for such Designated Securities, as notified to
the Company by the Representatives and (ii) the Time of Delivery for such
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Designated Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after such Time
of Delivery and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives; and
(g) To pay the required Commission filing fees relating to such Designated
Securities within the time required by Rule 456(b)(1) under the Act and otherwise in
accordance with Rules 456(b) and 457(r) under the Act.
6. | (a) Except as provided in Section 6(b) below with respect to the Final Term Sheet (as defined below), (i) the Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Designated Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act required to be filed by the Company with the Commission under Rule 433 under the Act, and (ii) each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Designated Securities that would constitute a free writing prospectus required to be filed by the Company with the Commission under Rule 433 under the Act, other than one or more term sheets relating to the Designated Securities containing customary information (which, in their final form, will not be inconsistent with the Final Term Sheet) and conveyed to purchasers of such Designated Securities; and |
(b) The Company and each of the Underwriters each has complied and will comply with
the requirements of Rule 433 under the Act to the extent applicable to any Issuer
Free Writing Prospectus. The Company has complied and will comply with the
requirements of Rule 433 with regard to timely filing with the Commission or
retention where required and legending of any Issuer Free Writing Prospectus. If
the Representatives prepare and timely provide to the Company a writing containing
solely a description of the terms of the Designated Securities and of the offering,
the Company will (i) review and (subject to such changes deemed appropriate by the
Company and the Representatives) approve, if requested by the Representatives in
connection with the offer and sale of the Designated Securities, such writing (as
so approved, the “Final Term Sheet”) and (ii) file such Final Term Sheet pursuant
to Rule 433(d) under the Act.
7. The Company covenants and agrees with the several Underwriters that the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the registration of the Securities under the Act and
all other expenses in connection with the preparation, printing and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus,
any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
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Agreement, any Pricing Agreement, any
Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with
the Indenture and the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery Contracts which are not
otherwise specifically provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 9 and Section 12 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses and expenses of any “free writing prospectus”
(as defined in Rule 405 under the Act), other than an Issuer Free Writing Prospectus, that is used
or referred to by the Underwriters connected with any offers they may make.
To the extent permitted by applicable law, the Company will indemnify and hold harmless the
Underwriters from any documentary, stamp, stamp duty reserve or similar issue tax or duty and any
related interest or penalties on, and value added tax (if any) payable in respect of the execution
of this Agreement or the issue, sale and delivery of the Securities to the subscribers which are
or may be payable in any jurisdiction.
8. The obligations of the Underwriters of any Designated Securities under the Pricing
Agreement relating to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and other statements of
the Company in or incorporated by reference in such Pricing Agreement are, at and as of the Time
of Delivery for such Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no 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 Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the
Commission shall have been complied with to the Representatives’ reasonable
satisfaction;
11
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the validity of
the Indenture, the Designated Securities, the Delayed Delivery Contracts, if any,
the Registration Statement, the Pricing Disclosure Package, the Prospectus as
amended or supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In rendering such opinion or opinions, such counsel may rely as to all
matters governed by Ohio law upon the opinion referred to in subsection (c) of this
Section;
(c) [NAME], Counsel for the Company, shall have furnished to the Underwriters his
or her written opinion, dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Ohio, with
corporate power and authority to own its properties and conduct its
business as described in the Pricing Disclosure Package and the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and the Prospectus as amended or supplemented
and all of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable;
(iii) Each domestic Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such Significant Subsidiary have been duly
and validly authorized and issued and are fully paid and non-assessable
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its domestic Significant
Subsidiaries);
(iv) The Company and each of its domestic Significant Subsidiaries are duly
authorized and are in good standing to do business in each jurisdiction in
the United States, other than their respective jurisdictions of
incorporation, in which they own or lease properties, or conduct any
business, so as to require such qualification (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of local
counsel
12
and in respect of matters of fact upon certificates of officers of
the Company or its domestic Significant Subsidiaries);
(v) To the best of such counsel’s knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
domestic Significant Subsidiaries is a party or of which any property of
the Company or any of its domestic Significant Subsidiaries is the subject,
other than as set forth in the Pricing Disclosure Package and the
Prospectus and other than legal or governmental proceedings which would not
in the aggregate reasonably be expected to have a material adverse effect
on the consolidated financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries considered as a whole; and,
to the best of such counsel’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(vii) In the event any of the Designated Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized, executed and delivered by the Company
and, assuming such Contract has been duly executed and delivered by the
purchaser named therein, constitutes a valid and legally binding agreement
of the Company enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in the
Pricing Disclosure Package and the Prospectus as amended or supplemented;
(viii) The Designated Securities have been duly authorized; the
Underwriters’ Securities have been duly executed, authenticated, issued and
delivered and, assuming receipt by the Company of payment of the issue
price of the Underwriters’ Securities, will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors’ rights and to general equity principles, and
entitled to the benefits provided by the Indenture; the Contract
Securities, if any, when executed, authenticated, issued and delivered
pursuant to the Indenture and Delayed Delivery Contracts, if
any, will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Designated
13
Securities and the Indenture conform to the descriptions thereof in the
Pricing Disclosure Package and the Prospectus as amended or supplemented;
(ix) The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(x) The issue and sale of the Designated Securities and the compliance by
the Company with all of the provisions of the Designated Securities, the
Indenture, each of the Delayed Delivery Contracts, if any, this Agreement
and the Pricing Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein 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 known to such
counsel to which the Company or any of its domestic Significant
Subsidiaries is a party or by which the Company or any of its domestic
Significant Subsidiaries is bound or to which any of the property or assets
of the Company or any of its domestic Significant Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Amended Articles of Incorporation, Regulations or By Laws of the Company or
any applicable statute or any applicable order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its domestic Significant
Subsidiaries or any of its or their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body of the State of New York, the State of
Ohio or the United States of America is required for the issue and sale of
the Designated Securities or the consummation by the Company of the other
transactions contemplated by this Agreement or such Pricing Agreement or
the Indenture or any of such Delayed Delivery Contracts, except such as
have been obtained under the 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 in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(xi) The documents incorporated by reference in the Pricing Prospectus or
the Prospectus, as amended or supplemented (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the
14
Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
they were so filed, contained an 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 when
such documents were so filed, not misleading; and
(xii) The Registration Statement as of the effective date (as such term is
defined in Rule 158(c) under the Act) and the Prospectus as of its issue
date, as amended or supplemented, (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe (x) that the Registration
Statement, at the time it was deemed effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; or (y) that the Pricing Disclosure Package, as of the
Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they were
made, not misleading; or (z) that, as of its date and as of the Time of
Delivery, the Prospectus or any such further amendment or supplement
thereto made by the Company prior to the Time of Delivery contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement, the Basic Prospectus or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required; and the statements in the Pricing Disclosure Package
and the Prospectus as amended or supplemented describing the Designated
Securities are accurate and fairly present the information required or
purported to be shown.
In rendering such opinion or opinions, such counsel may rely as to all matters
governed by New York law upon the opinions referred to in subsection (b) of this
Section;
(d) On the date of the Pricing Agreement and at the Time of Delivery for such
Designated Securities, Deloitte & Touche LLP, which has rendered its opinion on
15
the
financial statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement, shall have furnished to the
Representatives a comfort letter, in form and substance satisfactory to the
Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus or the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus or
the Prospectus, and (ii) since the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or in the consolidated capitalization of the Company and its
consolidated subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders’ equity or results of operations of the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus or the Prospectus, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Pricing Prospectus or the Prospectus;
(f) Subsequent to the date of the Pricing Agreement relating to the Designated
Securities no downgrading shall have occurred in the rating accorded the Company’s
debt securities by any “nationally recognized statistical rating organization”, as
that term is defined under Section 3(a)(62) of the Exchange Act and no public
announcement shall have been made by any such organization that it has under
surveillance or review, with possible negative implications, its rating of any of
the Company’s debt securities;
(g) Subsequent to the date of the Pricing Agreement relating to the Designated
Securities there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the over-the-counter market; (ii) a suspension or material limitation
in trading in the Company’s securities on the New York Stock Exchange or the
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities or
a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the
United States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in
16
the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters’ Securities on the terms and in the manner contemplated in the Pricing
Prospectus or the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities certificates
of officers of the Company satisfactory to the Representatives as to the accuracy
of the representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (e) of this Section, and as to such other matters
as the Representatives may reasonably request.
9. | (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by each Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, in reliance upon and in conformity with written information furnished to the Company by the Underwriters of Designated Securities through the Representatives expressly for use therein. |
(b) Each of the Underwriters 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 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any
17
amendment or supplement
thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, or
arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, in
reliance upon and in conformity with written information furnished to the Company
by such Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be 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 counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel of any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, 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)
18
above, then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities 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 such 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 contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the applicable Designated
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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Underwriters and to each
person, if any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and director
19
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
10. | (a) If any Underwriter shall default in its obligation to purchase the Underwriters’ Securities which it has agreed to purchase under the Pricing Agreement relating to such Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Underwriters’ Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter, the Representatives do not arrange for the purchase of such Underwriters’ Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Underwriters’ Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Underwriters’ Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Underwriters’ Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Underwriters’ Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement and the Pricing Agreement with respect to such Securities shall include any person substituted under this Section with like effect as if such person had originally been a party to such Pricing Agreement with respect to such Designated Securities. |
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters’ Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the aggregate
principal amount of such Underwriters’ Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Underwriters’ Securities which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing Agreement)
of the Underwriters’ Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
20
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters’ Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the aggregate
principal amount of Underwriters’ Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities, as
referred to in subsection (b) above, or if the company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Underwriters’ Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter with respect to the Designated Securities
covered by such Pricing Agreement except as provided in Section 7 and Section 9 hereof; but, if
for any other reason Underwriters’ Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriters with respect to such Designated Securities except as
provided in Section 7 and Section 9 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of Designated
Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing or by telegram
if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all respects
if delivered or sent by registered mail to the address of the Underwriters as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if delivered, or sent
by registered mail to the address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to any Underwriter pursuant to Section
21
9(c) hereof shall be delivered or sent by registered mail to such Underwriter at the address set
forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address
will be supplied to the Company by the Representatives upon request.
14. Each of the Company and the Underwriters acknowledges and agrees that (i) the purchase
and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction
between the Company, on the one hand, and the Underwriters, on the other, and (ii) in connection
therewith and with the process leading to such transaction each Underwriter is acting (and shall
at all times continue to act) solely as a principal and not the agent of the Company.
15. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11
hereof, the officers and directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
16. Time shall be of the essence of each Pricing Agreement.
17. This Agreement, each Pricing Agreement and each of the Delayed Delivery Contracts, if
any, shall be governed by and construed in accordance with the laws of the State of New York.
18. This Agreement and each Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and the same
instrument.
22
Very truly yours, THE PROCTER & XXXXXX COMPANY |
||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted as of the date hereof: | ||||
By: |
||||
By: |
||||
Title: |
ANNEX I:
Pricing
Agreement
Pricing
Agreement
[DATE]
[Names of Representatives],
As representatives of the several Underwriters
named in Schedule I hereto,
[c/o Representatives]
[Address(es) of Representatives]
As representatives of the several Underwriters
named in Schedule I hereto,
[c/o Representatives]
[Address(es) of Representatives]
Dear Sirs/Mesdames:
The Procter & Xxxxxx Company (the “Company”) proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated [DATE] (the “Underwriting Agreement”), to issue and
sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified
in Schedule II hereto (the “Designated Securities”).
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty in Section 2 of the Underwriting Agreement which makes
reference to the Pricing Prospectus and the Prospectus shall be deemed to be a representation and
warranty as of the date of the Underwriting Agreement in relation to the Pricing Prospectus and the
Prospectus (as therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Pricing Prospectus and the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this Pricing Agreement,
each representation and warranty in Section 2 of the Underwriting Agreement which makes reference
to the Pricing Disclosure Package shall be deemed to be a representation and warranty as of the
Applicable Time (as set forth in Schedule II hereto) in relation to the Pricing Disclosure Package
(as therein defined). Each reference to the Underwriters herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein
defined. The address of the Underwriters referred to in Section 13 of the Underwriting Agreement is
set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be,
relating to the Designated Securities, in the form heretofore delivered to you is now proposed to
be filed, or in the case of a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated
herein by reference, the Company agrees to issue and sell to the Underwriters, and the Underwriters
agree to purchase from the Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set
forth in Schedule I hereto, less the principal amount of Designated Securities covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II.
Each Underwriter severally and not jointly agrees that it will not offer, sell or deliver any of
the Designated Securities in any jurisdiction outside the United States except under circumstances
that will result in compliance with the applicable laws thereof. Each Underwriter severally and not
jointly acknowledges that no action has been taken to permit a public offering in any jurisdiction
outside the United States where action would be required for such purpose.
Each Underwriter severally and not jointly represents, warrants and agrees that (i) it has only
communicated or caused to be communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Xxx 0000
(“FSMA”)) received by it in connection with the issue or sale of any Designated Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (ii) it has
complied and will comply with all applicable provisions of the FSMA with respect to anything done
by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom.
Each Underwriter severally and not jointly represents and agrees that, in relation to each Member
State of the European Economic Area which has implemented the Prospectus Directive (each, a
“Relevant Member State”), with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made
and will not make an offer of Designated Securities to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Designated Securities which has been
approved by the competent authority in that Relevant Member State or, where appropriate, approved
in another Relevant Member State and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that it may, with effect from and
including the Relevant Implementation Date, make an offer of Designated Securities to the public in
that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an
annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(iii) to fewer than 100 natural or legal persons (other than qualified investors as defined in
the Prospectus Directive) subject to obtaining the prior consent of the representatives for any
such offer; or
(iv) in any other circumstances which do not require the publication of a prospectus pursuant
to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Designated Securities to the
public” in relation to any Designated Securities in any Relevant Member State means the
communication to persons in any form and by any means of sufficient information on the terms of the
offer and the Designated Securities to be offered so as to enable an investor to decide to purchase
or subscribe the Designated Securities, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State and the expression Prospectus
Directive means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
If the foregoing is in accordance with your understanding, please sign and return to us two
counterparts hereof, and upon acceptance hereof by you this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by reference, shall
constitute a binding agreement among the Underwriters and the Company.
Very truly yours, THE PROCTER & XXXXXX COMPANY |
||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted as of the date hereof: | ||||
By: |
||||
By: |
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Title: |
SCHEDULE I
Principal Amount of Designated | ||||
Underwriters | Securities to be Purchased | |||
$ | ||||
Total |
$ | |||
Schedule I
SCHEDULE II
Title of Designated Securities: [ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
Aggregate Principal Amount: $[ ]
Price to Public:
___% of the principal amount of the Designated Securities, plus accrued interest from ___
if settlement occurs after that date [and accrued amortization,
if any, from ___ to ___]
Purchase Price by Underwriters:
___% of the principal amount of the Designated Securities, plus accrued interest from ___
if settlement occurs after that date [and accrued amortization,
if any, from ___ to ___]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the Company in [New
York Clearing House] [same day] funds] [By wire transfer of immediately available funds payable to
the order of the Company or its designee] [Other specified method]
Indenture:
Indenture,
dated as of September 3, 2009, between the Company and Deutsche Bank Trust Company
Americas, as Trustee, including the Officer’s Certificate to be dated ___, with respect to the
terms of the Designated Securities
Applicable Time:
[Time and date], 20___.
Time of Delivery:
[Time and date], 20___.
Closing Location:
Names and Addresses of Underwriters:
Designated Representatives:
Securities Exchange:
Schedule II
[None] [Securities to be listed on the [New York] Stock Exchange]
Delayed Delivery:
[None] [Underwriters’ commission shall be ___% of the principal amount of Designated
Securities for which Delayed Delivery Contracts have been entered into. Such commission shall be
payable to the order of ___].
Maturity:
Interest Rate:
[___%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole
or in part at the option of the Company, in the amount of
$___ or an integral multiple thereof,
___] [on or after ___, ___at the following redemption prices (expressed in percentages of
principal amount). If [redeemed on or before ___, ___%, and if] redeemed during the 12-month
period beginning ___,
YEAR
REDEMPTION PRICE
and thereafter at 100% of their principal amount, together in each case with accrued interest to
the redemption date.]
[on
any interest payment date falling on or after___, ___, at the election of the
Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the
date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon occurrence of certain
events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[None]
Schedule II
[The Designated Securities are entitled to the benefit of a sinking fund to retire $ ___
principal amount of Designated Securities on in each of the years ___ through ___ at
100% of their principal amount plus accrued interest] [___, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an additional $ ___ principal
amount of Designated Securities in the years ___ through ___ at 100% of their principal amount
plus accrued interest.]
[If Securities are Extendible Debt Securities, insert-
Extendible Provisions:
Securities are repayable on , ___[insert date and years], at the option of the
holder, at their principal amount with accrued interest. Initial annual interest rate will be
___%, and thereafter annual interest rate will be adjusted on , ___ and to
a rate not less than ___% of the effective annual interest rate on U.S. Treasury obligations with
___ -year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert
maturity date].].
[If Securities are Floating Rate Debt Securities, insert-
Floating Rate Provisions:
Initial
annual interest rate will be ___% through
___ [and thereafter will be adjusted
[monthly] [on each ___, ___, ___ and ___] [to an annual rate of ___% above the average
rate for ___ -year [month] [securities] [certificates of deposit] by ___ and ___[insert names
of banks].] [and the annual interest rate [thereafter] [from ___ through ___] will be the
interest yield equivalent of the weekly average per annum market discount rate for ___ -month
Treasury bills plus ___% of Interest Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for ___ -month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average per annum market discount rate of
___ -month Treasury bills); [from ___ and thereafter the rate will be the then current yield
equivalent plus ___% of Interest Differential].]
Defeasance:
[The provisions of Sections 403 and 1006 of the Indenture relating to defeasance shall apply
to the Designated Securities.]
[Other Terms]: [A description of particular tax, accounting or other unusual features of the
Securities may be set forth, or referenced to an attached and accompanying description, if
necessary, to the issuer’s understanding of the transaction contemplated. Such a description might
appropriately be in the form in which such features will be described in the Prospectus Supplement
for the offering.]
Schedule II
SCHEDULE III(a)
[List of materials other than the Pricing Prospectus that comprise the Pricing Disclosure
Package]
Schedule III(a)
SCHEDULE III(b)
[Issuer Free Writing Prospectuses, if any, not included in the Pricing Disclosure Package]
Schedule III(b)
ANNEX II:
Delayed Delivery Contract
, 20___
THE PROCTER & XXXXXX COMPANY,
c/o [Name and address of appropriate Representatives].
c/o [Name and address of appropriate Representatives].
Attention:
Dear Sirs/Mesdames:
The undersigned hereby agrees to purchase from The Procter & Xxxxxx Company (hereinafter
called the “Company”), and the Company agrees to sell to the
Undersigned [$] principal amount of the Company’s [Title of Designated Securities] (hereinafter
called the “Designated Securities”), offered by the Company’s Prospectus dated , 20 , as
amended or supplemented, receipt of a copy of which is hereby acknowledged, at a purchase price of
[%] of the principal amount thereof [, plus accrued interest from the date from which interest
accrues as set forth below,] [and accrued amortization, if any, from [ ] [the date from
which interest accrues as set forth below]] and on the further terms and conditions set forth in
this contract. The undersigned will purchase the Designated Securities from the Company on
, 20 , (the “Delivery Date”) and interest on the Designated Securities so
purchased will accrue from , 20 . [The undersigned will purchase the Designated
Securities from the Company on the delivery date or dates and in the principal amount or amounts
set forth below:
Delivery Date | Principal Amount | Date From Which Interest Accrues | ||||||
Each such date on which Designated Securities are to be purchased hereunder is hereinafter
referred to as a “Delivery Date”.]
Payment for the Designated Securities which the undersigned has agreed to purchase on [the]
[each] Delivery Date shall be made to [the Company or its order by certified or official bank check
in [New York Clearing House] [same day] funds at the office of , or by wire
transfer of immediately payable funds to a bank account specified by the Company] [or specify other
means], on [the] [such] Delivery Date upon delivery to the undersigned of the Designated Securities
then to be purchased by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full business days prior to
[the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Designated
Securities on [the] [each] Delivery Date shall be subject to the condition that the purchase of
Designated Securities to be made by the undersigned shall not on [the] [such] Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is subject. The obligation
of the undersigned to take delivery of and make payment for Designated Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
[The undersigned understands that underwriters (the “Underwriters”) are also purchasing
Designated Securities from the Company, but that the obligations of the undersigned hereunder are
not contingent on such purchases. Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this contract, the undersigned
is not prohibited from purchasing the Designated Securities hereby agreed to be purchased by it
under the laws of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
This contract may be executed by either of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery Contract
(including this contract) is in the Company’s sole discretion and that, without limiting the
foregoing, acceptances of such contracts need not be on a first-come, first-served basis. If this
contract is acceptable to the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the undersigned when such
counterpart is so mailed or delivered by the Company.
Yours very truly, (Name of Purchaser) |
||||
By: | ||||
[NAME] | ||||
Accepted, , 20__. | ||||
THE PROCTER & XXXXXX COMPANY | ||||
By: |
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