The Goldman Sachs Group, Inc. [Title of Debt Securities] [Form of] Underwriting Agreement
Exhibit 1.5
The Xxxxxxx Xxxxx Group, Inc.
[Title of Debt Securities]
[Form of]
, 20___
Xxxxxxx, Sachs & Co.,
As representatives of the several Underwriters
named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
As representatives of the several Underwriters
named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of $ principal amount of the [Title of Debt
Securities] specified above (the “Securities”), which are further described in Schedule III hereto.
The Company acknowledges and agrees that Xxxxxxx, Sachs & Co. may use the Prospectus (as
defined below) in connection with offers and sales of the Securities as contemplated in the
Prospectus under the caption “Plan of Distribution — Market-Making Resales by Affiliates”
(“Secondary Market Transactions”). The Company further acknowledges and agrees that Xxxxxxx, Xxxxx
& Co. is under no obligation to effect any Secondary Market Transactions and, if it does so, it may
discontinue effecting such transactions at any time without providing any notice to the Company.
The term “Underwriter”, whenever used in this Agreement, shall include Xxxxxxx, Sachs & Co.,
whether acting in its capacity as an Underwriter or acting in connection with a Secondary Market
Transaction, except as may be specifically provided otherwise herein.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. [ ]) 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 hereof; such registration statement, and any
post-effective amendment thereto, became effective on 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 “Base Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities 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 exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part
of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Base Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Base 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, as of the date of such prospectus; any reference to any amendment or
supplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the
date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
“issuer free writing prospectus” as defined
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in Rule 433 under the Act relating to the Securities (an “Issuer Free Writing
Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, 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 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, in the light of the circumstances under which they were
made, 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 through Xxxxxxx, Xxxxx &
Co. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is ___:__m (Eastern
time) on the date of this Agreement; the Pricing Prospectus together with the statements
under the caption [“Specific Terms of the Notes"] in, and the information in the [table on
the] front cover of, the Prospectus (collectively, the “Pricing Disclosure Package”) as of
the Applicable Time, did not 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 under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(a) hereto (if any) does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not 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 under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through Xxxxxxx, Sachs &
Co. expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed 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, 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, in the
light of the circumstances under which they were made, not misleading; any further
documents so filed and
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incorporated by reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the Commission, as the case
may be, will conform 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 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 light of the
circumstances under which they were made, 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 through Xxxxxxx, Xxxxx & Co. expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the execution of this
Agreement, except as set forth on Schedule II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto, 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 through Xxxxxxx, Sachs & Co. expressly for use therein;
(f) Neither the Company nor any of its subsidiaries that are listed in the Company’s
latest annual report on Form 10-K pursuant to the requirements of Form 10-K and Item
601(b)(21) of the Commission’s Regulation S-K and are “significant subsidiaries” as defined
in Rule 1-02(w) of the Commission’s Regulation S-X (the “Significant Subsidiaries”) has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any material 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; and, since the
respective dates as of which information is given in the Registration Statement and the
Pricing Prospectus, there has not been any material
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adverse change in the capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus;
(g) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Pricing
Prospectus;
(h) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, 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;
(i) The Securities have been duly authorized and, when issued and delivered pursuant
to this Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Senior Debt Indenture dated as of July 16, 2008 (the “2008
Indenture”), between the Company and The Bank of New York Mellon, as Trustee (including any
successor trustee, the “Trustee”), under which they are to be issued; the 2008 Indenture
has been duly authorized and duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument, enforceable 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 2008 Indenture will conform to the descriptions thereof in the
Prospectus;
(j) The issue and sale of the Securities, the compliance by the Company with all of
the provisions of the Securities, the 2008 Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any 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 or the Amended and
Restated 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
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of its 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 by the Company or the consummation by the Company of the
transactions contemplated by this Agreement or the 2008 Indenture 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 Securities by the
Underwriters;
(k) Neither the Company nor any of its Significant Subsidiaries is in violation of its
organizational documents or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(l) The statements set forth in the Pricing Prospectus and the Prospectus under the
captions “Specific Terms of the Notes”, “Description of Debt Securities We May Offer”,
“Considerations Relating to Securities Issued in Bearer Form” and “Legal Ownership and
Book-Entry Issuance”, insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions “United States Taxation” and “Plan of Distribution”,
insofar as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(m) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future consolidated
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(o) (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
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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 163(c) under the
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163
under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under
the Act; and (B) at 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 Securities, the Company was not an “ineligible issuer” as defined in
Rule 405 under the Act;
(p) The Company and its Significant Subsidiaries possess all authorizations issued by
the appropriate Federal, state and foreign governments, governmental or regulatory
authorities, self-regulatory organizations and all courts or other tribunals, and are
members in good standing of each Federal, state or foreign exchange, board of trade,
clearing house or association and self-regulatory or similar organization necessary to
conduct their respective businesses as described in the Pricing Prospectus, except as would
not, individually or in the aggregate, have a material adverse effect on the prospects,
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries;
(q) PricewaterhouseCoopers LLP, who certified certain financial statements of the
Company and its subsidiaries, and audited the Company’s internal control over financial
reporting, are an independent registered public accounting firm as required by the Act and
the rules and regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under 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. Except as disclosed in the Pricing Prospectus, the Company’s internal control
over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting; and
(s) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure
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controls and procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within those entities; and such
disclosure controls and procedures are effective.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price of ___% of the principal amount thereof, plus
accrued interest, if any, from
, 20___ to the Time of Delivery (as defined below)
hereunder, the principal amount of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
one or more definitive global Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company
will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to Xxxxxxx, Sachs & Co. at least
forty-eight hours in advance, by causing DTC to credit the Securities to the account of Xxxxxxx,
Xxxxx & Co. at DTC. The Company will cause the certificates representing the Securities to be made
available to Xxxxxxx, Sachs & Co. for checking prior to the Time of Delivery (as defined below) at
the office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
, 20___ or at such other
place and time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing. Such
time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(i) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000 (the
“Closing Location”), and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be available for review by
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the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the date of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Base Prospectus or the Prospectus
prior to the Time of Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies
thereof; if requested by you prior to the Applicable Time, to prepare a final term sheet,
containing solely a description of the Securities, in the form set forth in Schedule III
hereto and to file such term sheet pursuant to Rule 433(d) under the Act within the time
required by such Rule; to file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; 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 subsequent to the date of the Prospectus and 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 the Securities (including, in the case
of Xxxxxxx, Sachs & Co., in any Secondary Market Transactions during the Secondary
Transactions Period as defined in Section 5A hereof), and during such same period to advise
you, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, 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 in respect of 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 the 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 the Prospectus or for
additional information; and, in the event of the issuance
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of any such stop order or of any such order preventing or suspending the use of any
Preliminary Prospectus or other prospectus in respect of the Securities or suspending any
such qualification, to promptly use its best efforts to obtain the withdrawal of such
order; and in the event of any such issuance of a notice of objection, promptly to take
such steps including, without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary to permit offers and
sales of the Securities by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you 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 which shall be disapproved by you
promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date
of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to the Securities, in a form satisfactory to you. If
at the Renewal Deadline the Company is no longer eligible to file an automatic shelf
registration statement, the Company will, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory to you and will
use its best efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue as
contemplated in the expired registration statement relating to the Securities. References
herein to the Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities (including, in the case of
Xxxxxxx, Xxxxx & Co., in any Secondary Market Transactions during the Secondary
Transactions Period), provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
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(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such quantities as
you may 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 prior to the
expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities (or, in the case of Xxxxxxx, Sachs & Co., in connection
with any Secondary Market Transactions during the Secondary Transactions Period, whether
before or after such expiration) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such 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 Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any Underwriter is required to
deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) in connection with sales of any of the Securities at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic
copies as you may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act (it being understood, however, that the preceding clause, rather than
this clause, shall apply with respect to Xxxxxxx, Xxxxx & Co. in connection with any
Secondary Market Transactions during the Secondary Transactions Period); provided, however,
that the Company may elect, upon notice to Xxxxxxx, Sachs & Co., not to comply with this
paragraph (d) with respect to any Secondary Market Transaction, but only for a period or
periods that the Company reasonably determines are necessary in order to avoid premature
disclosure of material, non-public information, unless, notwithstanding such election, such
disclosure would otherwise be required under this Agreement; and provided, further, that no
such period or periods described in the preceding proviso shall exceed 90 days in the
aggregate during any period of 12 consecutive calendar months. Upon receipt of any
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6
such notice, Xxxxxxx, Xxxxx & Co. shall cease using the Prospectus or any amendment or
supplement thereto in connection with Secondary Market Transactions until it receives
notice from the Company that it may resume using such document (or such document as it may
be amended or supplemented);
(f) To make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings 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);
(g) During the period beginning from the date hereof and continuing to and including
the later of (i) the termination of trading restrictions for the Securities as notified to
the Company by you and (ii) the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any debt securities of the Company that
are substantially similar to the Securities, without your prior written consent;
(h) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Act; and
(i) To use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of
Proceeds”.
5A. The Company agrees with Xxxxxxx, Sachs & Co., with respect to the issuance of the
Securities:
(a) To make no amendment or supplement to the Registration Statement, the Base Prospectus or
the Prospectus during the Secondary Transactions Period which shall be disapproved by Xxxxxxx,
Xxxxx & Co. promptly after reasonable notice thereof. The “Secondary Transactions Period” means
the period beginning on the date hereof and continuing for as long as may be required under
applicable law, in the reasonable judgment of Xxxxxxx, Sachs & Co. after consultation with the
Company, in order to offer and sell any such Securities in Secondary Market Transactions as
contemplated by the Pricing Prospectus;
(b) During the Secondary Transactions Period, to furnish to Xxxxxxx, Xxxxx & Co. copies of all
reports or other communications (financial or other)
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furnished to stockholders generally, and to deliver to Xxxxxxx, Sachs & Co. (i) as soon as
they are available, copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the Securities or any class of securities
of the Company is listed; and (ii) such additional information concerning the business and
financial condition of the Company as Xxxxxxx, Xxxxx & Co. may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission); and
(c) Each time the Registration Statement, the Base Prospectus or the Prospectus shall be
amended or supplemented during the Secondary Transactions Period, to furnish or cause to be
furnished to Xxxxxxx, Sachs & Co., upon its request, written opinions of counsel for the Company, a
letter from the independent accountants who have certified the financial statements included in the
Registration Statement as then amended and certificates of officers of the Company, in each case in
form and substance reasonably satisfactory to Xxxxxxx, Xxxxx & Co., all to the effect specified in
subsections (c), (d) and (i), respectively, of Section 8 hereof (as modified to relate to the
Registration Statement and the Prospectus as then amended or supplemented).
Notwithstanding the foregoing provisions, the Company may elect, upon notice to Xxxxxxx, Sachs
& Co., not to comply with this Section 5A with respect to any Secondary Market Transaction, but
only for a period or periods that the Company reasonably determines are necessary in order to avoid
premature disclosure of material, non-public information, unless, notwithstanding such election,
such disclosure would otherwise be required under this Agreement; and provided, further, that no
such period or periods described in the preceding proviso shall exceed 90 days in the aggregate
during any period of 12 consecutive calendar months. Upon receipt of any such notice, Xxxxxxx,
Xxxxx & Co. shall cease using the Prospectus or any amendment or supplement thereto in connection
with Secondary Market Transactions until it receives notice from the Company that it may resume
using such document (or such document as it may be amended or supplemented).
6. (a) (i) The Company and each Underwriter agree that the Underwriters may prepare and use
one or more preliminary or final term sheets relating to the Securities containing customary
information;
(ii) Each Underwriter represents that, other than as permitted under subparagraph
(a)(i) above, it has not made and will not make any offer relating to the Securities that
would constitute a “free writing prospectus” as defined in Rule 405 under the Act without
the prior consent of the Company and Xxxxxxx, Sachs & Co. and that Schedule II(a) hereto
-13-
is a complete list of any free writing prospectus for which the Underwriters have
received such consent; and
(iii) The Company represents and agrees that it has not made and will not make any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
without the prior consent of Xxxxxxx, Xxxxx & Co. and that Schedule II(a) hereto is a
complete list of any Issuer Free Writing Prospectuses for which the Company has received
such consent;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice thereof to Xxxxxxx, Sachs & Co.
and, if requested by Xxxxxxx, Xxxxx & Co., will prepare and furnish without charge to each
Underwriter (or, in the case of any Secondary Market Transaction, to Xxxxxxx, Sachs & Co.) an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein.
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, reproduction and filing of the Registration
Statement, the Base Prospectus, any Preliminary 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 Agreement, the 2008 Indenture, the Blue Sky Memorandum, closing documents
(including any compilations thereof) 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
-14-
Securities for offering and sale under state securities laws as provided in Section 5(d)
hereof, including the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required review by the
Financial Industry Regulatory Authority, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection with the 2008
Indenture and the Securities; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 9 and 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, the cost of preparing and distributing
any term sheet prepared by any Underwriter, and any advertising expenses connected with any offers
they may make.
8. The obligations of the Underwriters hereunder shall be subject, in your discretion, to the
condition that all representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery, 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) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; any final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and 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 your reasonable satisfaction;
-15-
(b) Counsel for the Underwriters shall have furnished to you a written opinion and letter,
dated the Time of Delivery, to the effect set forth in Annex I hereto;
(c) A General Counsel or Associate General Counsel for the Company shall have furnished to you
his or her written opinion, dated the Time of Delivery, in form and substance satisfactory to you,
to the effect set forth in Annex II hereto;
(d) On the date hereof at a time prior to the execution of this Agreement and at the Time of
Delivery for such Designated Securities, the independent accountants shall have furnished to you a
letter, dated the date hereof, and a letter, dated such Time of Delivery, respectively, to the
effect set forth in Annex III hereto, and with respect to such letter dated such Time of Delivery,
as to such other matters as you may reasonably request, and in form and substance satisfactory to
Xxxxxxx, Sachs & Co.;
(e) (i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by reference in the
Pricing 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, and
(ii) since the respective dates as of which information is given in 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
Significant Subsidiaries or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders’ equity or results of
operations of the Company and its Significant Subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of Xxxxxxx, Xxxxx & Co. so material and adverse as to make 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;
(f) On or after the Applicable Time (i) 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 by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;
(g) On or after the Applicable Time 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; (ii) a suspension or material
-16-
limitation in trading in the Company’s securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking activities 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 the United States or elsewhere, if
the effect of any such event specified in clause (iv) or (v) in the judgment of Xxxxxxx, Sachs &
Co. 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;
(h) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(i) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (e) of this Section and as to such other matters as
you 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 Base Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus 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 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 the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in
-17-
reliance upon and in conformity with written information furnished to the Company by
any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter 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 Base Prospectus, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, the Pricing Prospectus or any Issuer Free Writing Prospectus, 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 Base Prospectus, any
Preliminary Prospectus, or the Prospectus or any such amendment or supplement thereto, the Pricing
Prospectus or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx, Sachs & Co. 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 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
-18-
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) 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 on the other from the offering of the Securities. 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 Underwriters 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 Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 the Underwriters 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
-19-
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 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) 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
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; 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 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 Securities which
it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the purchase of such 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 you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the Time
of Delivery 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, 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 your opinion may thereby be made necessary.
The term “Underwriter” as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does not exceed
one-eleventh of the
-20-
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
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed to purchase
hereunder) of the 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.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which 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 subsection (b) above to require non-defaulting Underwriters to purchase Securities of
a defaulting Underwriter or Underwriters, then this Agreement 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. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in
subsection (a) of Section 9 hereof, the representations and warranties in subsections (b) and (c)
of Section 1 hereof and any representation or warranty as to the accuracy of the Registration
Statement or any Prospectus contained in any certificate furnished by the Company pursuant to
Section 8 hereof, insofar as they may constitute a basis for indemnification for liabilities (other
than payment by the Company of expenses incurred or paid in the successful defense of any action,
suit or proceeding) arising under the Act, shall not extend to the extent of any interest therein
of a controlling person or partner of an Underwriter who is a director or officer of the Company
who signed the Registration Statement or a controlling person of the Company when the Registration
Statement has become effective, except in each case to the extent that an interest of such
character shall have been determined by a court of appropriate jurisdiction as not against public
policy as expressed in
-21-
the Act. Unless in the opinion of counsel for the Company the matter has
been settled by controlling precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
13. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
14. In all dealings hereunder, Xxxxxxx, Xxxxx & Co. (and only Xxxxxxx, Sachs & Co.) shall act
on behalf of each of the Underwriters (including with respect to any determination as to whether
any condition to the obligations of the Underwriters has been satisfied, any representation or
agreement of the Company has been complied with or any such condition, representation or agreement
may be waived), 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 Xxxxxxx, Xxxxx & Co.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to Xxxxxxx, Sachs
& Co. as the representatives at Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department; and if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 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
-22-
acquire or have any right under or by virtue of this 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 this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
17. The Company 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 several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
20. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto 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. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
-23-
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities
laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that
treatment.
-24-
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
| Very truly yours, The Xxxxxxx Xxxxx Group, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
On behalf of each of the Underwriters
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Securities | ||||
| to be | ||||
| Underwriters | Purchased | |||
Xxxxxxx, Xxxxx & Co. |
||||
[Names of other Underwriters] |
||||
Total |
||||
SI-1
SCHEDULE II
| (a) | Issuer Free Writing Prospectuses: |
| • | Final term sheet in the form set forth in Schedule III hereto, but only if the Company is obligated to prepare and file such term sheet pursuant to Section 5(a) hereof. |
| (b) | Additional Documents Incorporated by Reference: |
SII-1
SCHEDULE III
The Xxxxxxx Sachs Group, Inc.
[To be modified as appropriate and completed prior to execution of this Agreement]
Title of Securities:
Aggregate Principal Amount to be Offered:
Price to Public:
Settlement Date:
Managing Underwriters:
Purchase Price by Underwriters:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Interest Reset Dates:
Redemption Provisions:
[Other Provisions:]
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. Alternately, 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 0-000-000-0000.
SIII-1
ANNEX I
Form of Opinion of Counsel to the Underwriters
[date]
Xxxxxxx, Sachs & Co.,
As Representatives of the
Several Underwriters,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
As Representatives of the
Several Underwriters,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
In connection with the several purchases today by you and the other Underwriters named in
Schedule I to the Underwriting Agreement, dated •, 20... (the “Underwriting Agreement”), between The
Xxxxxxx Sachs Group, Inc., a Delaware corporation (the “Company”), and you, as Representatives of
the several Underwriters named therein (the “Underwriters”), of $.......... principal amount of the
Company’s [...%][Floating Rate] Notes due .... (the “Securities”) issued pursuant to the Senior
Debt Indenture, dated as of July 16, 2008 (the “2008 Indenture”), between the Company and The Bank
of New York Mellon, as Trustee (the “Trustee”), we, as counsel for the several Underwriters, have
examined such corporate records, certificates and other documents, and such questions of law, as we
have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such
examination, we advise you that, in our opinion:
(1) The Company has been duly incorporated and is an existing corporation in good standing
under the laws of the State of Delaware.
(2) All regulatory consents, authorizations, approvals and filings required to be obtained or
made by the Company under the Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the
Securities by the Company to the Underwriters have been obtained or made.
(3) The issuance of the Securities in accordance with the 2008 Indenture and the sale of the
Securities by the Company to the Underwriters pursuant to the Underwriting Agreement do not, and
the performance by the Company of its obligations under the Securities, the 2008 Indenture and the
Underwriting Agreement and the consummation of the transactions therein contemplated, in each case
with respect to the Securities, will not, (a) violate the
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Restated Certificate of Incorporation or the Amended and Restated By-laws of the Company,
(b) result in a default under or breach of the agreements filed as exhibits nos. • through •,
inclusive, to the Company’s Annual Report on Form 10-K for the fiscal year ended •, 20.. [and
exhibits nos. • through •, inclusive, to the Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended •, 20..][and exhibit[s] no[s]. • to the Company’s Current Report on Form 8-K filed •,
20..] or (c) violate any Federal law of the United States or law of the State of New York
applicable to the Company; provided, however, that for the purposes of this
paragraph (3), we express no opinion with respect to Federal or state securities laws, fraudulent
transfer laws, other antifraud laws and the Employee Retirement Income Security Act of 1974 and
related laws; and provided, further, that insofar as the performance by the Company
of its obligations under the Securities, the 2008 Indenture and the Underwriting Agreement is
concerned, we express no opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights.
(4) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(5) The 2008 Indenture has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act of 1939; the Securities have been duly authorized,
executed, authenticated, issued and delivered; and the 2008 Indenture and the Securities constitute
valid and legally binding obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights and to general equity
principles.
(6) The Company is not, and immediately after giving effect to the offering and sale of the
Securities will not be, an “investment company” as such term is defined in the Investment Company
Act of 1940.
[Use the following if the Securities are denominated in a non-U.S. dollar currency — We note that,
as of the date of this opinion, a judgment for money in an action based on Securities denominated
in foreign currencies or currency units in a Federal or state court in the United States ordinarily
would be enforced in the United States only in U.S. dollars. The date used to determine the rate
of conversion of the foreign currency or currency unit in which a particular Security is
denominated into U.S. dollars will depend upon various factors, including which court renders the
judgment. In the case of a Security denominated in a foreign currency, a state court in the State
of New York rendering a judgment on such Security would be required under Section 27 of the New
York Judiciary Law to render such judgment in the foreign currency in which the Security is
denominated, and such judgment would be converted into U.S. dollars at the exchange rate prevailing
on the date of entry of the judgment.]
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The foregoing opinion is limited to the Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of Delaware, and we are expressing
no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters upon information obtained from public officials, officers
of the Company and other sources believed by us to be responsible, and we have assumed that the
2008 Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities
conform to the specimen thereof examined by us, that the Trustee’s certificates of authentication
of the Securities have been manually signed by one of the Trustee’s authorized officers, and that
the signatures on all documents examined by us are genuine, assumptions which we have not
independently verified.
Very truly yours,
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Form of Letter of Counsel to the Underwriters
[date]
Xxxxxxx, Xxxxx & Co.,
As Representatives of the
Several Underwriters,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
As Representatives of the
Several Underwriters,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
This is with reference to the registration under the Securities Act of 1933 (the “Securities
Act”) and offering of $............ aggregate principal amount of [......%] Notes due [.....] (the
“Securities”) of The Xxxxxxx Xxxxx Group, Inc. (the “Company”). The Registration Statement
relating to the Securities (File No. [ ]) was filed on Form S-3 in accordance with
procedures of the Securities and Exchange Commission (the “Commission”) permitting a delayed or
continuous offering of securities pursuant thereto and, if appropriate, a post-effective amendment
or prospectus supplement that provides information relating to the terms of the securities and the
manner of their distribution.
The
Securities have been offered by the Prospectus dated October 10, 2008 (the “Base
Prospectus”), as supplemented by the Prospectus Supplement dated ......., .... (the “Prospectus
Supplement”), which updates or supplements certain information contained in the Base Prospectus.
The Base Prospectus, as so supplemented by the Prospectus Supplement, does not necessarily contain
a current description of the Company’s business and affairs since, pursuant to Form S-3, it
incorporates by reference certain documents filed with the Commission that contain information as
of various dates.
In accordance with our understanding with you as to the scope of our services under the
circumstances applicable to the offering of the Securities, we reviewed the Registration Statement,
the Base Prospectus and the Prospectus Supplement and the documents listed in Schedule A hereto
(those documents, taken together with the Base Prospectus, the “Pricing Disclosure Package”),
participated in discussions with your representatives and those of the Company, its counsel and its
accountants and advised you as to the requirements of the Act and the applicable rules and
regulations thereunder. Between the date of the Prospectus Supplement and the time of delivery of
this letter, we participated in further discussions with your representatives and those of the
Company, its counsel and its accountants concerning certain matters relating to the Company and
reviewed certificates of certain officers of the Company, an opinion of [a][an Associate] General
Counsel of the Company and a letter from the Company’s
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independent accountants delivered to you in connection with the offering of the Securities.
On the basis of the information that we gained in the course of the performance of the
services referred to above, considered in the light of our understanding of the applicable law
(including the requirements of Form S-3 and the character of the prospectus contemplated thereby)
and the experience we have gained through our practice under the Securities Act, we advised you and
now confirm that, in our opinion, each part of the Registration Statement, when such part became
effective, and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of
the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material
respects relevant to the offering of the Securities, to the requirements of the Act, the Trust
Indenture Act of 1939 and the applicable rules and regulations of the Commission thereunder.
Further, nothing that came to our attention in the course of such review has caused us to believe
that, insofar as relevant to the offering of the Securities,
(a) any part of the Registration Statement, when such part became effective, contained any
untrue statement of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
(b) the Pricing Disclosure Package, as of [___:00] [A/P].M. on ........ , ....... (which you have
informed us is a time prior to the time of the first sale of the Securities by any Underwriter),
when considered together with the statements made under the caption [“Specific Terms of the Notes”]
in, and the information [in the table] on the front cover of, the Prospectus Supplement, 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 the circumstances under which they were made, not
misleading or
(c) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, 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 the circumstances
under which they were made, not misleading.
We also advise you that nothing that came to our attention in the course of the procedures
described in the second sentence of the prior paragraph has caused us to believe that, insofar as
relevant to the offering of the Securities, the Base Prospectus, as supplemented by the Prospectus
Supplement, as of the time of delivery of this letter, 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 the circumstances under which they were made, not misleading.
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In addition, we do not know of any litigation or any governmental proceeding instituted or
threatened against the Company that would be required to be disclosed in the Base Prospectus, as
supplemented by the Prospectus Supplement, and is not so disclosed. We call to your attention,
however, the fact that the Company has an internal legal department and that, while we represent
the Company on a regular basis, our engagement has been limited to specific matters as to which we
were consulted by the Company and, accordingly, our knowledge with respect to litigation and
governmental proceedings instituted or threatened against the Company is similarly limited. Also,
insofar as the offering of the Securities is concerned, we do not know of any documents that, as of
the date and time of delivery of this letter, are required to be filed as exhibits to the
Registration Statement and are not so filed.
The limitations inherent in the independent verification of factual matters and the character
of determinations involved in the registration process are such, however, that we do not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Base Prospectus or the Prospectus Supplement or the Pricing Disclosure
Package, except for those made under the captions [“Description of Debt Securities We May Offer”,
“Legal Ownership and Book-Entry Issuance” and “Plan of Distribution”] in the Base Prospectus and
[“Specific Terms of the Notes” and “Underwriting”] in the Prospectus Supplement, in each case
insofar as they relate to provisions, therein described, of the Securities, the 2008 Indenture
under which the Securities are being issued and the Underwriting Agreement relating to the
Securities. Also, we do not express any opinion or belief as to the financial statements or other
financial data derived from accounting records contained in the Registration Statement, the Base
Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the report of
management’s assessment of the effectiveness of internal control over financial reporting or the
auditor’s attestation report thereon, each as included in the Registration Statement, the Base
Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of
the eligibility and qualification of the Trustee under the 2008 Indenture under which the
Securities are being issued.
This letter is furnished by us, as counsel to the Underwriters, to you, as Representatives of
the Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may not
be relied upon by any other person. This letter may not be quoted, referred to or furnished to any
purchaser or prospective purchaser of the Securities and may not be used in furtherance of any
offer or sale of the Securities.
Very truly yours,
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Schedule A
[List documents other than the Base Prospectus that are included in the Pricing Disclosure
Package.]
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ANNEX II
Form of Opinion of General Counsel or Associate General Counsel
(1) The Company has been duly incorporated and is validly existing as a corporation under the
laws of the State of Delaware;
(2) This Agreement has been duly authorized, executed and delivered by the Company;
(3) The Securities have been duly authorized, executed, issued and delivered; and
(4) The 2008 Indenture has been duly authorized, executed and delivered by the Company.
In rendering such opinion, such counsel may state that such counsel expresses no opinion as to the
laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware; that, insofar as such opinion
involves factual matters, such counsel has relied upon certificates of officers of the Company and
its subsidiaries and certificates of public officials and other sources believed by such counsel to
be responsible; and that such counsel has assumed that the 2008 Indenture has been duly authorized,
executed and delivered by the Trustee, that the Securities conform to the forms thereof examined by
such counsel (or members of the Company’s legal department acting under such counsel’s
supervision), that the Trustee’s certificates of authentication of the Securities have been
manually signed by one of the Trustee’s authorized signatories and that the signatures on all
documents examined by such counsel (or members of the Company’s legal department acting under such
counsel’s supervision) are genuine, assumptions that such counsel has not independently verified.
In addition, such counsel may state that such counsel has examined, or has caused members of the
Company’s legal department to examine, such corporate and partnership records, certificates and
other documents, and such questions of law, as such counsel has considered necessary or appropriate
for the purposes of such opinion.
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ANNEX III
Pursuant to Section 8(d) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriters to the effect that:
(i) They are an independent registered public accounting firm with respect to the
Company within the meaning of the Act and the applicable published rules and regulations
thereunder adopted by the Securities and Exchange Commission (the “SEC”) and the Public
Company Accounting Oversight Board (United States) (the “PCAOB”);
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro forma
financial information) audited or examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the Public Company
Accounting Oversight Board of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies of which
have been furnished to the Underwriters;
(iii) They have made a review in accordance with standards established by the Public
Company Accounting Oversight Board of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company’s Quarterly Report(s) on Form 10-Q covering
periods after the latest full fiscal year and incorporated by reference into the Prospectus
as indicated in their reports thereon copies of which have been furnished to the
Underwriters; and on the basis of specified procedures including inquiries of officials of
the Company, who have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
AIII-1
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most recent fiscal
years included in the Prospectus and/or included or incorporated by reference in Item 6 of
the Company’s Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or incorporated by
reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included or incorporated by reference in the Company’s
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included or incorporated
by reference in the Company’s Quarterly Report(s) on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with generally accepted
accounting principles;
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(B) any other unaudited income statement data and balance sheet items included
in the Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the Company’s Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus as most recently amended or
supplemented and referred to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial statements
included or incorporated by reference in the Company’s Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock (other than
issuances or forfeitures of restricted stock units issued under the company’s Stock
Incentive Plan and repurchases of common stock in accordance with the Company’s
common stock repurchase program or issuances of stock associated with the Company’s
employee stock option plans) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated total assets or
stockholders’ equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
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(F) for the period from the date of the latest financial statements included
or incorporated by reference in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated total revenues or consolidated
revenues, net of interest expense, pre-tax earnings or net earnings or other items
specified by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable items in the
comparable period of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter [insert if applicable — and except that, because no final
consolidated income statement information was available for that period, the
accountants are unable to provide an opinion as to whether there have been any such
decreases or increases]; and
(vii) In addition to the audit referred to in their report(s) included or incorporated
by reference in the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in agreement.
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