CAMPBELL SOUP COMPANY Debt Securities Underwriting Agreement Standard Provisions
Exhibit
1
XXXXXXXX
SOUP COMPANY
Debt
Securities
Underwriting
Agreement Standard Provisions
From time to time, Xxxxxxxx Soup Company, a New Jersey corporation (the
“Company”), may enter into one or more underwriting agreements in the form of
Annex A hereto that incorporate by reference these Standard Provisions
(collectively with these Standard Provisions, an “Underwriting Agreement”) that
provide for the sale of the securities designated in such Underwriting Agreement
(the “Securities”) to the several Underwriters named therein (the
“Underwriters”), for whom the Underwriter(s) named therein shall act as
representative (the “Representative”). The Underwriting Agreement, including
these Standard Provisions, is sometimes referred to herein as this
“Agreement”. The Securities will be issued pursuant to an indenture
(the “Indenture”) dated as of November 24, 2008 between the Company and The Bank
of New York Mellon, as trustee (the “Trustee”).
1. Registration
Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form S-3 (File
No. 333-
), including a prospectus (the “Basic Prospectus”), relating to the debt
securities to be issued from time to time by the Company. The Company
has also filed, or proposes to file, with the Commission pursuant to Rule 424
under the Securities Act a prospectus supplement specifically relating to the
Securities (the “Prospectus Supplement”). The registration statement,
as amended at the time it became effective, including the information, if any,
deemed pursuant to Rule 430A,
430B or 430C under
the Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Prospectus” means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used (or
made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the
Securities and the term “Preliminary Prospectus” means the preliminary
prospectus supplement specifically relating to the Securities together with the
Basic Prospectus. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the
Prospectus. References herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein. The terms “supplement,” “amendment” and “amend” as used
herein
as used herein with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed by the Company under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (the
“Exchange Act”) subsequent to the date of the Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of this
Agreement, the term “Effective Time” means the effective
date of
the Registration Statement with
respect to the offering of Securities, as determined for the Company pursuant to
Section 11 of the Securities Act and Item 512 of Regulation S-K, as
applicable.
At
or prior to the time when sales of the Securities will be first made (the “Time
of Sale”), the Company will prepare certain information (collectively, the “Time
of Sale Information”) which information will be identified in Schedule 3 to the
Underwriting Agreement for such offering of Securities as constituting part of
the Time of Sale
Information.
2. Purchase
of the Securities by the Underwriters. (a) The
Company agrees to issue and sell the Securities to the several Underwriters
named in the Underwriting Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment for
and delivery of the Securities will be made at the time and place set forth in
the Underwriting Agreement. The time and date of such payment and delivery is
referred to herein as the “Closing Date”.
(c) The
Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to any offering of Securities
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, no such Underwriter is
advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and such Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
such Underwriters named in the Underwriting Agreement of the Company, the
transactions contemplated thereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the
Company.
3.
Representations
and Warranties of the Company. The Company represents and
warrants to each Underwriter that:
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(a) Registration
Statement and Prospectus. The Registration Statement is an
“automatic shelf registration statement” as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and to the Company’s knowledge, no
proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or threatened
by the Commission; as of the Effective Time, the Registration Statement complied
in all material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”), and did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus did not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided
that the Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) any statements or omissions in the Registration Statement
and the Prospectus and any amendment or supplement thereto made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use therein.
(b) Time
of Sale Information. The Time of Sale Information, at the Time
of Sale and at the Closing Date did not and will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in such Time of Sale Information. No
statement of material fact included in the Prospectus has been omitted from the
Time of Sale Information and no statement of material fact included in the Time
of Sale Information that is required to be included in the Prospectus has been
omitted therefrom.
(c) Issuer
Free Writing Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and
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representatives (other
than a communication referred to in clauses (i), (ii) and (iii) below) an
“Issuer Free Writing Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule 3 to the Underwriting Agreement as
constituting the Time of Sale Information and (v) any electronic road show or
other written communications, in each case approved in advance by the
Representative. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the
time period specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to
the first use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in any Issuer Free Writing
Prospectus.
(d) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information, when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(e) No
Violation or Default. The issue and sale of the Securities and
the compliance by the Company with all of the provisions of the Securities, the
Indenture and this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation, as
amended, or the By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties, which conflict, breach, default or
violation would have a material adverse effect on the consolidated financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries.
(f)
No
Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body of the United States of America or the State of New Jersey is required for
the issuance and sale of the Securities or the consummation by the Company of
the transactions
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contemplated by this
Agreement or the Indenture except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters.
(g) Internal
Control Over Financial Reporting. The Company maintains a
system of internal control over financial reporting (as such term is defined in
Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer
and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles; and the internal control over
consolidated financial reporting of the Company is effective and the Company is
not aware of any material weaknesses in its internal control over financial
reporting.
(h) Disclosure
Controls and Procedures. The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) of the
Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material
information relating to the Company is made known to the Company’s principal
executive officer and principal financial officer by others within the Company
and its subsidiaries; and such disclosure controls and procedures are
effective.
(i)
Status
under the Securities Act. The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in
connection with the offering of the Securities.
4. Further
Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Filings
with the Commission. The Company will (i) pay the registration fees for
this offering within the time period required by Rule 456(b)1(i) under the
Securities Act (without giving effect to the proviso therein) and in any event
prior to the Closing Date and (ii) file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to Rule 424 under the Securities Act
not later than the close of business on the second business day following the
date of determination of the public offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b) and Rule
430A,
430B or 430C under the Securities Act. The
Company will file any Issuer Free Writing Prospectus (including the Term Sheet
in the form of Schedule 4 to the Underwriting Agreement) to the extent required
by Rule 433 under the Securities Act; and the Company will furnish copies
of the Prospectus and
each Issuer Free Writing Prospectus (to the extent not previously delivered)
to the Underwriters in New York City prior to 10:00 A.M., New York City
time, on the business
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day
next succeeding the date of this Agreement in such quantities as the
Representative may reasonably request.
(b) Delivery
of Copies. The Company will deliver, without charge, to each
Underwriter during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) and each Issuer Free Writing
Prospectus (if applicable) as the Representative may reasonably
request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in connection with sales of
the Securities by any Underwriter or dealer.
(c) Amendments
or Supplements; Issuer Free Writing Prospectuses. Before
making, preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Company will furnish to the
Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not make,
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representative reasonably objects unless, in the case of a filing, the Company
is required by law to make such filing.
(d) Notice
to the Representative. The Company will advise the
Representative promptly (i) when any amendment to the Registration Statement has
been filed or becomes effective; (ii) when any supplement to the Prospectus or
any amendment to the Prospectus or any Issuer Free Writing Prospectus has been
filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v)
of the receipt by the Company of any notice of objection of the Commission to
the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and (vi) of the receipt by
the Company of any notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
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(e) Time
of Sale Information. If at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the Time
of Sale Information as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above,
file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representative may designate, such
amendments or supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law.
(f)
Ongoing
Compliance. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representative may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(g) Earning
Statement. The Company will make generally available to its
security holders as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration
Statement.
(h) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the
Underwriters. Each Underwriter hereby represents and agrees
that:
(a) it
has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under
the Securities Act (which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference into the
Registration
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Statement
and any press release issued by the Company) other than (i) a free writing
prospectus that, solely a result of use by such underwriter, would not trigger
an obligation to file such free writing prospectus with the Commission pursuant
to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule 3 to the
Underwriting Agreement or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus
prepared by such underwriter and approved by the Company in advance in writing
(each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”);
(b) notwithstanding
the foregoing the Underwriters may use a term sheet substantially in the form of
Schedule 4 to the Underwriting Agreement without the consent of the
Company;
and
(c) it
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
6.
Conditions
of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. If a post-effective amendment to
the Registration Statement is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, and the
Representative shall have received notice thereof, not later than 5:00 P.M., New
York City time, on the date of the Underwriting Agreement; if applicable, the
Rule 462(b) Registration Statement shall have become effective by 10:00 a.m. New
York City time on the business day following the date of the Underwriting
Agreement; no order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceeding for such purpose, pursuant
to Rule 401(g)(2) or pursuant to Section 8A under
the Securities Act shall be pending before, or to the knowledge of the
Company, threatened by the Commission; the Prospectus and
each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in
the case of an Issuer Free Writing Prospectus, to the extent required by Rule
433 under the Securities Act) and in accordance with Section 4(a)
hereof.
(b) Officer's
Certificate. The Representative shall have received on the
Closing Date a certificate signed by two officers of the Company satisfactory to
the Representative (i) as to the accuracy of the representations and warranties
of the Company herein at and as of the Time of Sale and at and as of the Closing
Date, (ii) as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Closing Date, (iii) at and as of
the Time of Sale and at and as of the Closing Date, as to the absence subsequent
to the date of the most recent financial statements in or incorporated by
reference in the Registration Statement, the Time of Sale Information and the
Prospectus, of any material adverse change in the business,
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properties
and financial position or results of operation of the Company except as set
forth in or contemplated by the Registration Statement, the Time of Sale
Information or the Prospectus, as amended and supplemented, as to the
matters set forth in subsection (a) of this Section, and (iv) as to such
other matters as the Representative may reasonably request.
(c) Comfort
Letters. On the date of this Agreement and on the Closing
Date, PricewaterhouseCoopers LLP shall have furnished to the Representative, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus; provided that the letter
delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date.
(d) Opinion and
10b-5 Statement
of Counsel of the Company. Xxxxx Xxxxxxxx, Vice President –
Legal of the Company, shall have furnished to the Representative, at the request
of the Company, her written opinion and
10b-5 statement, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annexes B-1 and B-2
hereto.
(e) Opinion and
10b-5 Statement
of Counsel for the Underwriters. The Representative shall have
received on and as of the Closing Date an opinion and
10b-5 statement of counsel for the Underwriters, with respect to such
matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(f)
Opinion of
Counsel for the Company. The Representative shall have
received an opinion, in form and substance reasonably satisfactory to the
Representative, dated the Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel
for the Company, to the effect set forth in Annex C.
All opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters. The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect
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thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Time of Sale Information, the Registration Statement
or the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Time of
Sale Information, the Registration Statement or the Prospectus or any such
amendment or supplement (i) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein or (ii) contained in that part of
the Registration Statement constituting the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the
Trustee.
(b) Indemnification
of the Company. Each Underwriter, severally and not jointly,
will indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information,
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Time of Sale Information, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Notice
and Procedures. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action
(including any governmental investigation), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such
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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 or represent two or more parties if such representation would be
inappropriate due to actual or potential differing interests between or among
them), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) Contribution. If
the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Securities to which such loss, claims, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such
Underwriter. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriter on the
other and the parties’
- 11 -
relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro
rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) Non-Exclusive
Remedies. The obligations of the Company under this Section 7
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of any Underwriter and to each person, if any, who controls any Underwriter
within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
8.
Termination. This
Agreement may be terminated in the discretion of the Representative, by notice
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date there shall have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or any material disruption in securities settlement or
clearance systems; or (iii) the outbreak or escalation of hostilities or any
calamity or crisis on or after the date of this Agreement if the effect of any
such event specified in this clause (iii) in the reasonable judgment of the
Representative is material and adverse to the market for the Securities and
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus as amended or
supplemented.
- 12 -
9.
Defaulting
Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of 36
hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Securities on such terms. If other
persons become obligated or agree to purchase the Securities of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may postpone
the Closing Date for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement,
the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in the Underwriting Agreement
that, pursuant to this Section 9,
purchases Securities that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities that such Underwriter agreed to purchase hereunder plus
such Underwriter's pro
rata
share (based on the principal amount of Securities that such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this
Section 9
shall be without liability on the part of the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in Section
10
hereof and except that the provisions of Section 7
hereof shall not terminate and shall remain in effect.
- 13 -
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
10. Payment
of Expenses. (a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus,
any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing the
Indenture, the Securities and the Underwriting Agreement (collectively, the
“Transaction Documents”); (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) any fees charged by rating agencies for rating
the Securities; and (vi) the fees and expenses of the Trustee and any paying
agent (including related fees and expenses of any counsel to such
parties).
(b) If (i) this
Agreement is terminated pursuant to Section 8,
(ii) the Company for any reason fails to tender the Securities for delivery to
the Underwriters or (iii) the Underwriters decline to purchase the Securities
for any reason permitted under this Agreement (other than as permitted by
Section 9), the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses approved in writing by the Representative
(including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated
hereby.
11. Persons
Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed
to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company or the
Underwriters.
- 14 -
13. Certain
Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority
of the Representative. Any action by the Underwriters
hereunder may be taken by the Representative on behalf of the Underwriters, and
any such action taken by the Representative shall be binding upon the
Underwriters.
(b) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriters shall
be given to the Representative at the address set forth in the Underwriting
Agreement. Notices to the Company shall be given to it at Xxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxx, 00000-0000, (fax:(000) 000-0000); Attention:
Corporate Secretary, or if different, to the address set forth in the
Underwriting Agreement.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Amendments
or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(e) Headings. The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
- 15 -
Annex
A
Underwriting
Agreement
_________,
20__
[Name/address
of Representatives]
Ladies
and Gentlemen:
Xxxxxxxx
Soup Company, a New Jersey corporation (the “Company”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representative (the
“Representative”), $___________ principal amount of its _____% Senior Notes due
_____ having the terms set forth in Schedule 2 hereto (the
“Securities”). The Securities will be issued pursuant to an indenture
(the “Indenture”) dated as of November 24, 2008 between the Company and The Bank
of New York Mellon, as trustee (the “Trustee”).
The
Company agrees to issue and sell the Securities to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in Schedule 1 hereto at a price equal to _____% of the
principal amount thereof plus accrued interest, if any, from ________, 20__ to
the Closing Date (as defined below). The Company will not be
obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
The
Company understands that the Underwriters intend to make a public offering of
the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representative is advisable, and initially to offer the
Securities on the terms set forth in the Time
of Sale Information and the Prospectus. Schedule 3 hereto sets forth
the Time of Sale Information made available at the Time of
Sale. The Company acknowledges and agrees that the
Underwriters may offer and sell Securities to or through any affiliate of an
Underwriter and that any such affiliate may offer and sell Securities purchased
by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of
________________ at 10:00 A.M., New York City time, on __________, 20__, or at
such other time or place on the same or such other date, not later than the
fifth
- 16 -
business
day thereafter, as the Representative and the Company may agree upon in
writing.
Payment for the Securities shall be made by wire transfer in immediately
available funds to the account(s) specified by the Company to the Representative
against delivery to the nominee of The Depository Trust Company, for the account
of the Underwriters, of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representative not later than
1:00 P.M., New York City time, on the business day prior to the Closing
Date.
The
Company and the Underwriters acknowledge and agree that the only information
relating to any Underwriter that has been furnished to the Company in writing by
any Underwriter through the Representative expressly for use in the Registration
Statement,
the Prospectus (or any amendment or supplement thereto) any
Issuer Free Writing Prospectus or any Time of Sale Information consists
of the following: _____________.
All
provisions contained in the document entitled Xxxxxxxx Soup Company Debt
Securities Underwriting Agreement Standard Provisions are incorporated by
reference herein in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in such Underwriting
Agreement Standard Provisions is otherwise defined herein, the definition set
forth herein shall control.
This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
- 17 -
If the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
| Very truly yours, | |||
|
|
By
|
||
| Name: | |||
| Title: | |||
|
|
By
|
||
| Name: | |||
| Title: | |||
Accepted:
___________, 20__
[Name
of Representative]
For
itself and on behalf of the
several
Underwriters listed
in
Schedule 1 hereto.
| By | ||
|
Authorized
Signatory
|
|
- 18 -
Schedule
1
| Underwriter | Principal Amount | |
| $ | ||
| Total | $ |
- 19 -
Schedule
2
Representative(s)
and Address(es) for Notices:
Certain
Terms of the Securities:
Title
of Securities: ________ % Senior Notes due
20__
Aggregate
Principal Amount of
Securities: $_____________
Maturity
Date: _________, 20__
Interest
Rate: _____%
Interest Payment
Dates: _________
and ________, commencing _________, 20__
Record
Dates: ________
and _________
Redemption
Provisions:
The
Securities will be redeemable, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of such Securities or (ii) as determined by a Quotation Agent
(as defined in the Prospectus), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate (as defined in the
Prospectus), plus __ basis points plus accrued interest thereon to the date of
redemption.
- 20 -
Schedule
3
Time
of Sale Information
Pricing
Term Sheet dated __________,
20__
Preliminary Prospectus dated __________, 20__
- 21 -
Schedule
4
Xxxxxxxx
Soup Company
Pricing
Term Sheet
|
Issuer:
|
Xxxxxxxx
Soup Company
|
|
Size:
|
$_________
|
|
Maturity:
|
_____________
__, 20__
|
|
Coupon:
|
____%
|
|
Price
to Public:
|
____%
|
|
Yield
to maturity:
|
____%
|
|
[Spread
to Benchmark Treasury:
|
+
____ basis points
|
|
[Benchmark
Treasury:]
|
_____]
|
|
[Benchmark
Treasury Yield:
|
______ _____%]
|
|
Interest
Payment Dates:
|
_______
and _______, commencing ______, 20__
|
|
[Redemption
Provisions:]
|
|
|
[Make-whole
call]
|
[At
any time][Before the first call date] at a discount rate of Treasury plus
__basis points]
|
|
Settlement:
|
_________
__, 20__
|
|
[CUSIP:
|
]
|
|
[Ratings:
|
]
|
|
[Note:
A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any
time.]
|
|
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling ____________ toll-free
at __________.
- 22 -
Annex
B-1
[Form
of Opinion of Counsel of the Company]
(1) The
Company is duly incorporated and validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and
authority to own its properties and conduct its business as described in
the Prospectus as amended or supplemented.
(2) To
the best knowledge of such counsel, there are no pending or threatened legal or
governmental proceedings required to be described in the Registration Statement,
the Time of Sale Information or the Prospectus as amended or supplemented
relating to the Securities which are not described therein as required in
all material respects.
(3) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(4) The
issuance and sale of the Securities have been duly authorized by the Company and
the Securities have been duly executed and delivered by the
Company.
(5) The
Indenture has been duly authorized, executed and delivered by the
Company.
(6) The
issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation, as
amended, or the By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties, which conflict, breach, default or
violation would have a material adverse effect on the consolidated financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries.
(7)
No consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States of America or
the State of New Jersey is required for the issuance and sale of the Securities
or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or blue sky laws of any
- 23 -
jurisdiction
in connection with the purchase and distribution of the Securities by the
Underwriters.
(8) The
Securities and the Indenture conform to the descriptions thereof in the
Prospectus.
(9)
The documents incorporated by reference in the Time of Sale Information and the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), appear on
their face to be appropriately responsive in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel of the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 24 -
Annex
B-2
[Form
of 10b-5 Statement of Counsel of the Company]
The
Registration Statement, as of its effective date, the Preliminary Prospectus and
the Prospectus, as of their respective dates (in each case other than the
documents incorporated by reference therein), and any further amendments and
supplements thereto made by the Company prior to the Closing Date (other than
the financial statements and related schedules included or incorporated by
reference therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Securities Act and
the rules and regulations thereunder
I have
no reason to believe that the Registration Statement, as of the date of the
Underwriting Agreement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, that the Time of Sale Information,
at the Time of Sale (which such counsel may assume to be the date of the
Underwriting Agreement) contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that the Prospectus or any amendment or supplement thereto as of the date of the
Prospectus or any amendment or supplement thereto and as of the Closing Date
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the
financial statements and related schedules contained therein, as to
which such counsel need express no belief).
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel of the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 25 -
Annex
C
[Form
of Opinion of Counsel for the Company]
(1) The
Indenture has been qualified under the Trust Indenture Act.
(2) Assuming
the due authorization, execution and delivery by the Company, the Indenture is a
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, provided that such counsel need not express any
opinion as to the (x) enforceability of any waiver of rights under any usury or
stay law and (y) validity, legally binding effect or enforceability of any
provision that permits holders to collect any portion of stated principal amount
upon acceleration of the Securities to the extent determined to constitute
unearned interest.
(3) Assuming
the due authorization of the Securities by the Company, the Securities, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture pursuant to which such Securities are to be issued,
provided that such counsel need not express any opinion as to the (x)
enforceability of any waiver of rights under any usury or stay law and (y)
validity, legally binding effect or enforceability of any provision that permits
holders to collect any portion of stated principal amount upon acceleration of
the Securities to the extent determined to constitute unearned
interest.
(4) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, the Transaction Documents will not contravene any
provision of the laws of the State of New York or any federal law of the United
States of America that in such counsel’s experience is normally applicable to
general business corporations in relation to transactions of the type
contemplated by the Transaction Documents, provided that such counsel need not
express any opinion as to federal or state securities laws.
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of counsel for the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
- 26 -
