Exhibit 1.1
EXECUTION COPY
Pactiv Corporation
$250,000,000 5.875% Notes due 2012
$250,000,000 6.400% Notes due 2018
Underwriting Agreement
June 20, 2007
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pactiv Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), $250,000,000 principal amount of its 5.875% Notes due 2012
(the "2012 Notes") and $250,000,000 principal amount of its 6.400% Notes due
2018 (the "2018 Notes" and, together with the 2012 Notes, collectively, the
"Securities"). The Securities will be issued pursuant to an Indenture, dated as
of September 29, 1999, as previously supplemented (the "Base Indenture"),
between the Company and The Bank of New York Trust Company, N.A. (as successor
in interest to JPMorgan Chase Bank, N.A.), as trustee (the "Trustee"), as
supplemented by one or more supplemental indenture(s) relating to the Securities
expected to be dated as of June 25, 2007 (the "Supplemental Indentures" and,
together with the Base Indenture, the "Indenture").
4
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on Form S-3 (File
No. 333- 143895), including a base prospectus, relating to the debt securities
to be offered from time to time by the Company. Such registration statement, as
amended at the time it becomes effective, including the information, if any,
deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part
of the registration statement at the time of its effectiveness ("Rule 430
Information"), is referred to herein as the "Registration Statement"; the base
prospectus filed as part of the Registration Statement, in the form in which it
was most recently filed with the Commission prior to or on the date of this
Agreement, is referred to herein as the "Base Prospectus"; the final prospectus
supplement to such prospectus (including the Base Prospectus) relating to the
Securities, in the form filed or to be filed with the Commission pursuant to
Rule 424(b) under the Securities Act, is referred to herein as the "Prospectus";
and any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Securities in the form filed or to be filed with the Commission
pursuant to Rule 424(b) is referred to herein as a "Preliminary Prospectus". Any
reference in this Agreement to the Registration Statement, the Base 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 Securities Act, which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the
effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed by the Company under the Exchange Act after the effective
date of the Registration Statement or the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and under the Exchange Act that are deemed
to be incorporated by reference therein.
For purposes of this Agreement, the term "Effective Time" means the
applicable effective date or dates with respect to the Registration Statement
and relating to the offering of the Securities, as determined for the Company
pursuant to Section 11 of the Securities Act and Rule 430B or 430C under the
Securities Act, as and to the extent applicable, and Item 512 of Regulation S-K,
as applicable.
At 4:20 p.m. (New York City time) on June 20, 2007, which was immediately
prior to the time when sales of the Securities were first made (the "Time of
Sale"), the Company had prepared the following information (collectively, the
"Time of Sale Information"): a Preliminary Prospectus dated June 20, 2007
relating to the Securities, and each "free-writing prospectus" (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex C hereto as
constituting part of the Time of Sale Information.
5
2. Purchase of the Securities by the Underwriters. (a) The Company agrees
to issue and sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule 1 hereto at a price equal to 99.171% of the principal amount thereof in
the case of the 2012 Notes and 98.950% of the principal amount thereof in the
case of the 2018 Notes, in each case plus accrued interest, if any, from June
25, 2007 to the Closing Date (as defined in Section 2(c) hereof). The Company
will not be obligated to deliver any of the Securities except upon payment for
all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this Agreement as
in the judgment of the Representatives is advisable, and initially to offer the
Securities on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York, New York, at 9:30 A.M. (New York
City time), on June 25, 2007, or at such other time or place on the same or such
other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the "Closing Date".
(d) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the Securities (collectively, the "Global Notes"), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Company.
The Global Notes will be made available for inspection by the Representatives
not later than 1:00 P.M. (New York City time) on the business day prior to the
Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of the Securities contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any of its
affiliates. Additionally, neither the Representatives nor any other Underwriter
is advising the Company or any of its affiliates as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction in connection
with the transactions contemplated hereby. The Company shall consult with its
own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
6
3. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement is an
"automatic shelf registration statement" (as defined under Rule 405 under the
Securities Act) that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has
been issued by the Commission and, to the knowledge of the Company, no
proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or threatened
by the Commission; as of the Effective Time of the Registration Statement and
any amendment thereto, the Registration Statement complied and will comply in
all material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of the
Trustee under the Trust Indenture Act or (ii) any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(b) Preliminary Prospectus. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission; and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in any Preliminary Prospectus.
7
(c) Time of Sale Information. The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in such Time of Sale Information. No statement of material fact that will be
included in the Prospectus has been omitted from the Time of Sale Information
and no statement of material fact included in the Time of Sale Information that
is required to be included in the Prospectus will be omitted therefrom.
(d) Issuer Free Writing Prospectuses. The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and representatives (other than a communication
referred to in clauses (i) (ii) and (iii) below), an "Issuer Free Writing
Prospectus") other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Annex C hereto as constituting the Time of Sale Information and (v)
any electronic road show or other written communications, in each case approved
in writing in advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities Act, has been
or will be (within the time period specified in Rule 433 under the Securities
Act) filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying,
or delivered prior to delivery of, or filed prior to the first use of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in any Issuer Free Writing Prospectus.
(e) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, when
they were filed with the Commission conformed in all material respects to the
requirements under the Exchange Act, and none of such documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement,
the Prospectus or the Time of Sale Information, 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 under the Securities Act or the
Exchange Act, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
8
(f) Financial Statements. (i) The financial statements and the related
notes thereto of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus comply
in all material respects with the applicable requirements under the Securities
Act and the Exchange Act, as applicable, and present fairly the financial
position of the Company and its subsidiaries, as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; and the other financial information
included or incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus has been derived from such financial
statements or the accounting records of the Company and its subsidiaries
(including Prairie Packaging, Inc.) and presents fairly the information shown
thereby; (ii) to the best knowledge of the Company (after due inquiry), the
financial statements and the related notes thereto of Prairie Packaging, Inc.
included or incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus comply in all material respects with the
applicable requirements under the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of Prairie Packaging, Inc.
and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; to the
best knowledge of the Company (after due inquiry), such financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby, and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein; and
(iii) the pro forma financial information and the related notes thereto included
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus have been prepared in accordance with the
applicable requirements under the Securities Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial information
are reasonable and are set forth in the Registration Statement, the Time of Sale
Information and the Prospectus.
(g) No Material Adverse Change. Except in each case as otherwise disclosed
in the Registration Statement, the Time of Sale Information and the Prospectus,
since the date of the most recent financial statements of the Company included
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any decrease in the
9
capital stock or material increase in long-term debt of the Company or any of
its subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, financial position,
results of operations or prospects of the Company and its subsidiaries taken as
a whole; (ii) neither the Company nor any of its subsidiaries has entered into
any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained
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
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority.
(h) Organization and Good Standing. The Company and each of its
"significant subsidiaries" (as such term is defined in Rule 405 under the
Securities Act) have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified, in good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, financial position, results of operations or prospects of
the Company and its subsidiaries taken as a whole or on the performance by the
Company of its obligations under the Securities (a "Material Adverse Effect").
The subsidiaries listed on Schedule 2 to this Agreement are the Company's only
"significant subsidiaries".
(i) Capitalization. The Company has an authorized capitalization as set
forth in the Preliminary Prospectus dated June 20, 2007 and the Prospectus under
the heading "Capitalization"; and all the outstanding shares of capital stock or
other equity interests of each significant subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any
other claim of any third party.
(j) Due Authorization. The Company has full right, power and authority to
execute and deliver this Agreement, the Indenture and the Securities
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been
duly and validly taken.
10
(k) Indenture. The Indenture has been duly authorized by the Company and,
upon effectiveness of the Registration Statement, was or will have been duly
qualified under the Trust Indenture Act and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability (collectively, the "Enforceability Exceptions").
(l) Securities. The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued and
outstanding under the Indenture and will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms, subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(n) Descriptions of Transaction Documents. Each Transaction Document
conforms or will conform in all material respects to the description thereof
contained in the Time of Sale Information and the Prospectus.
(o) No Violation or Default. Neither the Company nor any of its significant
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(p) No Conflicts. The execution, delivery and performance by the Company of
each of the Transaction Documents, (including the issuance and sale of the
Securities) will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii)
result in any violation of the provisions of the charter or by-laws or similar
constitutive documents of the Company or any of its significant subsidiaries or
(iii) result in the violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory
authority.
11
(q) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of each of the Transaction Documents, (including the issuance and
sale of the Securities), except for the registration of the Securities under the
Securities Act and the qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state Blue Sky or securities
laws in connection with the purchase and distribution of the Securities by the
Underwriters.
(r) Legal Proceedings. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending
to which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject that, if
determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; no such
investigations, actions, suits or proceedings are, to the best knowledge of the
Company, threatened or contemplated by any governmental or regulatory authority
or threatened by others; and (i) there are no pending legal, governmental or
regulatory investigations, actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement or the
Prospectus that are not so described in the Registration Statement, the Time of
Sale Information and the Prospectus and (ii) there are no statutes, regulations
or contracts or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the Registration
Statement and the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of
Sale Information and the Prospectus.
(s) Independent Registered Public Accounting Firm. (i) Ernst & Young LLP,
which has certified certain financial statements of the Company and its
subsidiaries is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act; and (ii) KPMG LLP, which
has certified certain financial statements of Prairie Packaging, Inc. and its
subsidiaries is an independent registered public accounting firms with respect
to thereto within the applicable rules and regulations adopted by the Commission
and the Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(t) Title to Real and Personal Property. The Company and its subsidiaries
have good and marketable title in fee simple to, or have valid rights to lease
or otherwise use, all real and personal property that are material to the
respective businesses of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of title,
except those that (i) do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries or (ii) would
not, individually or in the aggregate, have a Material Adverse Effect.
12
(u) Title to Intellectual Property. The Company and its subsidiaries own or
possess adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses, and the
conduct of their respective businesses will not conflict in any respect with any
such rights of others, and the Company and its subsidiaries have not received
any notice of any claim of infringement or conflict with any such rights of
others, in each case except for any failure to possess such rights or any
infringement or conflict with such rights of others that would not, individually
or in the aggregate, have a Material Adverse Effect.
(v) Investment Company Act. The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof as described in the Registration Statement, the Time of Sale Information
and the Prospectus, will not be an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (collectively, "Investment Company Act").
(w) Licenses and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Time of
Sale Information and the Prospectus, except where the failure to possess or make
the same would not, individually or in the aggregate, have a Material Adverse
Effect; and except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed in the
ordinary course.
(x) Compliance with Environmental Laws. (i) The Company and its
subsidiaries (x) are, and at all prior times were, in compliance with any and
all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health or
safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "Environmental Laws"); (y)
have received and are in compliance with all permits, licenses, certificates or
other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (z) have not
received notice of any actual or potential liability under or relating to any
Environmental Laws, including for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, and (ii) there are no costs
(including, without limitation, capital expeditures) or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries,
except in the case of each of (i) and (ii) above, for any such failure to
comply, or failure to receive required permits, licenses or approvals, or cost
or liability, as would not, individually or in the aggregate, have a Material
Adverse Effect.
13
(y) Compliance with ERISA. (i) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), for which the Company or any member of its "controlled
group" (defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the "Code")) would have any liability (each, a "Plan") has
been maintained in all material respects in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption; (iii) for each Plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency" as defined in Section 412 of the Code, whether
or not waived, has occurred or is reasonably expected to occur; (iv) the fair
market value of the assets of each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on those assumptions used to
fund such Plan); (v) no "reportable event" (within the meaning of Section
4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi)
neither the Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA).
(z) Disclosure Controls. The Company maintains an effective system of
"disclosure controls and procedures" (as defined in Rule 13a-15(e) under the
Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported within the time periods
specified in the Commission's rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the
Company's management as appropriate to allow timely decisions regarding required
disclosure. The Company has carried out evaluations of the effectiveness of its
disclosure controls and procedures as required by Rule 13a-15 under the Exchange
Act.
(aa) Accounting Controls. The Company maintains systems of "internal
control over financial reporting" (as defined in Rule 13a-15(f) under the
Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, the Company's principal executive
and principal financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial reporting
14
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles, including, but not limited to
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus, there are, to the knowledge of
the Company, no material weaknesses in the Company's internal control over
financial reporting.
(bb) No Restrictions on Subsidiaries. No significant subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or
other instrument to which it is a party or is subject, from paying any dividends
to the Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary's properties or
assets to the Company or any other subsidiary of the Company.
(cc) No Registration Rights. No person has the right to require the Company
or any of its subsidiaries to register any securities for sale under the
Securities Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Securities.
(dd) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A under the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement, the Time of Sale Information and
the Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(ee) Statistical and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Time of Sale
Information and the Prospectus is not based on or derived from sources that are
reliable and accurate in all material respects.
(ff) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of
the Company or any of the Company's directors or officers, in their capacities
as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Xxxxxxxx-Xxxxx Act"), including Section 402 (related
to loans) and Sections 302 and 906 (related to certifications).
15
(gg) Status under Securities Act. The Company is not an ineligible issuer
and is a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in
connection with the offering of the Securities.
4. Further Agreements of the Company. The Company covenants and agrees with
each Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B
or 430C under the Securities Act, will file any Issuer Free Writing Prospectus
(including the Term Sheet in the form of Annex D hereto) to the extent required
by Rule 433 under the Securities Act; and will 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 during the Prospectus Delivery Period (as defined in Section 4(b)
hereof); and the Company will furnish copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M. (New York City time) on the
second business day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request. The Company will pay
the registration fees for this offering within the time period required by Rule
456(b)(1)(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to
the Representatives, two signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith and documents incorporated by reference therein;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and (B) during the Prospectus Delivery
Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the Representatives may
reasonably request. As used herein, the term "Prospectus Delivery Period" means
such period of time, if any, after the first date of the public offering of the
Securities a prospectus relating to the Securities is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before
making, preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to
the Registration Statement or the Prospectus, prior to the consummation of the
offering of the Securities, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the Representatives
reasonably object.
16
(d) Notice to the Representatives. Prior to the termination of the
Prospectus Delivery Period, the Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when any amendment to the
Registration Statement has been filed or becomes effective; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer
Free Writing Prospectus has been filed; (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or the receipt of any comments from the Commission relating to
the Registration Statement or any other request by the Commission for any
additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A under the Securities Act; (v) to the extent not addressed in Section
4(e) or 4(f) hereof, of the occurrence of any event within the Prospectus
Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by
the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Securities and, if any such order is issued, will use its best efforts to
obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i)
any event shall occur or condition shall exist as a result of which the Time of
Sale Information as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to Section 4(c) hereof,
file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate, such
amendments or supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law.
17
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representatives may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law
(g) Blue Sky Compliance. The Company will qualify the Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications
in effect so long as required for distribution of the Securities; provided that
the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file any general consent to
service of process in any such jurisdiction or (iii) subject itself to taxation
in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 under the Securities Act covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after
the "effective date" (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and
including Closing Date, the Company will not, without the prior written consent
of the Representatives, offer, sell, contract to sell or otherwise dispose of
any debt securities issued or guaranteed by the Company and having a tenor of
more than one year (other than the Securities).
(j) Use of Proceeds. The Company will apply the net proceeds from the sale
of the Securities as described in the Time of Sale Information and the
Prospectus under the heading "Use of proceeds".
(k) No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(l) Record Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
18
5. Certain Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate
in the planning for use of, any "free writing prospectus" (as defined in Rule
405 under the Securities Act), which term includes use of any written
information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the
Company, other than (i) a free writing prospectus that, solely as a result of
use by such underwriter, would not trigger an obligation to file such free
writing prospectus with the Commission pursuant to Rule 433 under the Securities
Act, (ii) any Issuer Free Writing Prospectus listed on Annex C or prepared
pursuant to Section 3(d) or Section 4(c) above (including any electronic road
show), or (iii) any free writing prospectus prepared by such underwriter and
approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an "Underwriter Free Writing Prospectus").
Notwithstanding the foregoing, each of the Underwriters may use term sheets
substantially in the form of Annex D hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering (and will promptly notify the
Company if any such proceeding against it is initiated during the Prospectus
Delivery Period).
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose, pursuant to Rule 401(g)(2) under the Securities Act
or pursuant to Section 8A of the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of a Issuer Free Writing Prospectus, to the extent required by
Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B)
the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Securities or any other debt securities of
or guaranteed by the Company by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt
securities of or guaranteed by the Company (other than an announcement with
positive implications of a possible upgrading).
19
(d) No Material Adverse Change. No event or condition of a type described
in Section 3(g) hereof shall have occurred or shall exist, which event or
condition is not described in the Time of Sale Information (excluding any
amendment or supplement thereto) and the Prospectus (excluding any amendment or
supplement thereto) and the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer's Certificate. The Representatives shall have received on and
as of the Closing Date a certificate of an executive officer of the Company who
has specific knowledge of the Company's financial matters and is satisfactory to
the Representatives (i) confirming that such officer has carefully reviewed the
Registration Statement, the Time of Sale Information and the Prospectus and, to
the best knowledge of such officer, the representations set forth in Sections
3(a) or 3(c) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in Sections 6(a), 6(c) and 6(d)
hereof.
(f) Comfort Letters. (i) On the date of this Agreement and on the Closing
Date, Xxxxx & Young LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof
and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus; provided that the letter delivered on the
Closing Date shall use a "cut-off" date no more than three business days prior
to the Closing Date; and (ii) on the date of this Agreement and on the Closing
Date, KPMG LLP shall have furnished to the Representatives, at the request of
the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus; provided that the letter delivered on the
Closing Date shall use a "cut-off" date no more than three business days prior
to the Closing Date.
20
(g) Opinions of General Counsel for the Company. Xxxxxx X. Xxxxx, Esq.,
Vice President, General Counsel and Secretary of the Company, shall have
furnished to the Representatives, at the request of the Company, his written
opinion and separate negative assurance letter, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A hereto.
(h) Opinions of Counsel for the Company. Mayer, Brown, Xxxx & Maw LLP,
counsel for the Company, shall have furnished to the Representatives, at the
request of the Company, its written opinion and separate negative assurance
letter, dated the Closing Date and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex B hereto.
(i) Opinions of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date an opinion and separate negative
assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as
they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by
any federal, state or foreign governmental or regulatory authority that would,
as of the Closing Date, prevent the issuance or sale of the Securities; and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(k) Good Standing. The Representatives shall have received on and as of the
Closing Date satisfactory evidence of the good standing of the Company and its
significant subsidiaries in their respective jurisdictions of organization and
their good standing in such jurisdictions as are specified on Schedule 3 hereto,
in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(l) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors, officers,
employees and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
21
from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses reasonably incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, any preliminary prospectus supplement, the Time of Sale
Information, the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus or any "issuer information" (as defined in Rule 433
under the Securities Act) filed or required to be filed under Rule 433(d), or
any omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case except insofar as such losses,
claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
Section 7(a), but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement, the Preliminary Prospectus, any preliminary
prospectus supplement, the Time of Sale Information, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any
"issuer information" (as defined in Rule 433 under the Securities Act) filed or
required to be filed under Rule 433(d), it being understood and agreed that the
only such information consists of the following: (i) the names of the
Underwriters on the cover pages of the Preliminary Prospectus dated June 20,
2007 and the Prospectus; (ii) the names of the Underwriters in the table in the
first paragraph under the caption "Underwriting" in the Preliminary Prospectus
dated June 20, 2007 and the Prospectus; and (iii) the third, sixth (third
sentence only) and seventh paragraphs under the caption "Underwriting" in the
Preliminary Prospectus dated June 20, 2007 and the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either Section 7(a) or 7(b), such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnification may be sought
(the "Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced
22
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification
pursuant to Section 7 that the Indemnifying Party may designate in such
proceeding and shall pay the reasonable fees and expenses of such proceeding and
shall pay the reasonable fees and expenses of counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interest
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are reasonably incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
the Representatives and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of
the Company shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request and this Agreement prior to
the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
23
(d) Contribution. If the indemnification provided for in Section 7(a) and
7(b) above is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
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 that resulted in
such losses, claims, damages or liabilities, 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
respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other 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 or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d) above. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in Section 7(d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that 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) under the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to their respective purchase obligations hereunder and not joint.
24
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion
of the Representatives, by notice to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange
or the over-the-counter securities market; (ii) trading of any securities issued
or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York state authorities or
a material disruption in commercial banking or securities settlement or
clearance services shall have occurred; or (iv) there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the United
States or declaration of national emergency or war by the United States or any
change in financial markets or any calamity or crisis, either within or outside
the United States that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriters. (a) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Securities that it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Securities by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to
the non-defaulting Underwriters to purchase such Securities on such terms. If
other persons become obligated or agree to purchase the Securities of a
defaulting Underwriter, either the non defaulting Underwriters or the Company
may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 10, purchases Securities that a defaulting Underwriter
agreed but failed to purchase.
25
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in Section 10(a), the aggregate
principal amount of such Securities that remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities that such Underwriter agreed to
purchase hereunder plus such Underwriter's pro rata share (based on the
principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in Section 10(a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in Section 10(b), then this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 10
shall be without liability on the part of the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in Section
11 hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including, without limitation, the following: (i)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (ii) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus (including
all exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company's counsel and independent
registered public accounting firm; (v) the fees and expenses incurred in
connection with the registration or qualification of the Securities under the
laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of a Blue Sky Memorandum, including the
related reasonable fees and expenses of counsel for the Underwriters (not to
exceed $5,000); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) any
expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, the National Association of Securities Dealers
Inc; and (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors in the Securities. Except as set forth
in the preceding sentence of this Section 11(a) and in Section 11(b) hereof, the
Underwriters shall be responsible for their own fees and expenses relating to
the offering of the Securities, including the fees and expenses of their
counsel.
26
(b) If (i) this Agreement is terminated pursuant to Section 9(ii) hereof,
(ii) the Company for any reason fails to tender the Securities for delivery to
the Underwriters or (iii) the Underwriters decline to purchase the Securities
for any reason permitted under this Agreement (other than pursuant to Section
9(i), 9(iii) or 9(iv) hereof), the Company agrees to reimburse the Underwriters
for all out-of-pocket costs and expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or the Underwriters. The respective indemnities, rights of
contribution and agreements of the Company and the Underwriters set forth in
Sections 7 and 11 hereof shall also remain in full force and effect, regardless
of any termination of this Agreement.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; and (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City or Chicago, Illinois.
15. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the
Underwriters, and any such action taken by the Representatives shall be binding
upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
27
shall be given to the Representatives c/o X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: Investment
Grade Desk and c/o Morgan Xxxxxxx and Co. Incorporated, 0000 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: Investment
Banking Division. Notices to the Company shall be given to it at 0000 Xxxx Xxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 (fax: 000-0000); Attention: Treasurer.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The headings herein are included for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
PACTIV CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Title: SVP & CFO
Accepted: June 20, 2007
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxx
-------------
Name: Xxxxx Xxxx
Title: Vice President
For themselves and on behalf of the several Underwriters listed in Schedule 1
hereto.
29
SCHEDULE 1
Principal Amount Principal Amount
of 2012 of 2018
Underwriter Notes Notes
----------- ---------------- ----------------
X.X. Xxxxxx Securities Inc........... $100,000,000 $100,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.... 87,500,000 87,500,000
Banc of America Securities, LLC...... 12,500,000 12,500,000
Barclays Capital Inc. ............... 12,500,000 12,500,000
Xxxxxx Brothers Inc. ................ 12,500,000 12,500,000
SunTrust Capital Markets, Inc. ...... 12,500,000 12,500,000
Wachovia Capital Markets, LLC........ 12,500,000 12,500,000
---------------- ----------------
Total.................................. $250,000,000 $250,000,000
================ ================
30
SCHEDULE 2
SIGNIFICANT SUBSIDIARIES
Prairie Packaging, Inc.
31
SCHEDULE 3
FOREIGN QUALIFICATION
Pactiv Corporation:
-------------------
Delaware (state of incorporation)
Illinois
California
Georgia
New York
North Carolina
South Carolina
Texas
Prairie Packaging, Inc.:
------------------------
Delaware (state of incorporation)
Illinois
North Carolina
32
ANNEX A
Form of Opinions of Vice President, General Counsel and Secretary of the Company
(1) The Company and each of its significant subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization and are in good standing as foreign
corporations under the laws of the State of Illinois.
(2) The Company has an authorized capitalization as set forth in the
Preliminary Prospectus dated June 20, 2007 and the Prospectus under the heading
"Capitalization"; and the Company owns directly all of the outstanding shares of
capital stock, free and clear of any lien, charge, encumbrance, security
interest, restrictions on voting or transfer (other than restrictions on
transfer arising under securities laws) or any other claim of any third party,
of each significant subsidiary.
(3) The Company has full right, power and authority to execute and deliver
each of the Transaction Documents and to perform its obligations thereunder; and
all action required to be taken for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(4) The execution, delivery and performance by the Company of each of the
Transaction Documents (including the issuance and sale of the Securities) will
not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to me to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter or by-laws or similar constitutive documents of
the Company or significant subsidiaries or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach, violation or default
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(5) To the knowledge of such counsel, except as described in the Time of
Sale Information and the Prospectus, there are no legal, governmental or
regulatory, investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject which, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect; and no such
investigations, actions, suits or proceedings are threatened or, to the
knowledge of such counsel, contemplated by any governmental or regulatory
authority or threatened by others.
A-1
(6) The descriptions in the Registration Statement, the Time of Sale
Information and the Prospectus of statutes, legal, governmental and regulatory
proceedings and contracts and other documents are accurate in all material
respects; and the statements in the Prospectus incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus from
Item 3 of Part I of the Company's Annual Report on Form 10-K for the year ended
December 31, 2006, to the extent that they constitute summaries of matters of
law or regulation or legal conclusions, fairly summarize the matters described
therein in all material respects.
(7) The documents incorporated by reference in the Time of Sale Information
and the Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Date, when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (in each case, other than the financial statements and
other financial data, as to which such counsel need express no opinion).
Such counsel shall also state that no facts have come to his attention that
lead him to believe that (i) the Registration Statement, at the Effective Time
(including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the Registration Statement at the
Effective Time), contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Time of Sale Information, at the
Time of Sale, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (iii) the
Prospectus or any amendment or supplement thereto, as of its date and the
Closing Date,contains any untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, other
than the financial statements and other financial data contained or incorporated
by reference therein or omitted therefrom or the Statement of Eligibility on
Form T-1 of the Trustee, as to which such counsel need express no belief).
The opinion of counsel to the Company described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
A-2
ANNEX B
Form of Opinions of Counsel for the Company
(1) The Registration Statement has become effective under the Securities
Act; each of the Preliminary Prospectus, dated June 20, 2007, and the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule 424(b) under
the Securities Act specified in such counsel's opinion on the date specified
therein; and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, 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 Securities
Act has been received by the Company, and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the Company or in
connection with the offering of the Securities is pending or threatened by the
Commission.
(2) The Registration Statement, as of the Effective Time, and the
Prospectus, as of its date, complied as to form in all material respects with
the requirements of the Securities Act (in each case, other than (a) the
financial statements and other financial data contained or incorporated by
reference therein or excluded therefrom or (b) the Statement of Eligibility on
Form T-1 of the Trustee, as to which such counsel need express no opinion).
(3) The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and, assuming due
execution and delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Company enforceable against the Company in accordance
with its terms.
(4) The Securities have been duly authorized, executed and delivered by the
Company and, when duly authenticated as provided in the Indenture and paid for
as provided in this Agreement, will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms, and will be entitled to the benefits of the Indenture.
(5) This Agreement has been duly authorized, executed and delivered by the
Company.
(6) Each Transaction Document conforms in all material respects to the
description thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus.
(7) The execution, delivery and performance by the Company of each of the
Transaction Documents (including the issuance and sale of the Securities) will
not result in the violation of any Applicable Law or any judgment, order, rule
or regulation of any court or governmental or regulatory authority of the State
of Illinois, the State of New York, the United States or the State of Delaware
(acting under the Delaware General Corporation Law) known to us to be applicable
to the Company or any of its subsidiaries.
B-1
(8) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental or regulatory authority
is required for the execution, delivery and performance by the Company of each
of the Transaction Documents (including the issuance and sale of the
Securities), except for the registration of the Securities under the Securities
Act and the qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state Blue Sky or securities
laws in connection with the purchase and distribution of the Securities by the
Underwriters.
(9) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Time of Sale Information and the Prospectus, will not be an "investment company"
within the meaning of the Investment Company Act.
(10) To the knowledge of such counsel, (A) there are no pending legal,
governmental or regulatory investigations, actions, suits or proceedings that
are required under the Securities Act to be described in the Registration
Statement or the Prospectus and that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus and (B) there are no
statutes, regulations or contracts and other documents that are required under
the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale Information or the
Prospectus and that have not been so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of Sale
Information and the Prospectus.
Such counsel shall also state that they have participated in conferences
with representatives of the Company and with representatives of its independent
accountants and counsel for the Underwriters at which conferences the contents
of the Registration Statement, the Time of Sale Information and the Prospectus
and any amendment and supplement thereto and related matters were discussed and,
although such counsel assume no responsibility for the accuracy, completeness or
fairness of the Registration Statement, the Time of Sale Information, the
Prospectus and any amendment or supplement thereto (except as expressly provided
in paragraphs 6 and 10 above) and has not made any independent check or
verification thereof (except as aforesaid), no facts have come to the attention
of such counsel that lead such counsel to believe (i) the Registration
Statement, at the Effective Time (including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
Registration Statement at the Effective Time), contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Time of Sale Information, at the Time of Sale (which such counsel may assume to
be the date of the Underwriting Agreement), contained any untrue statement of a
B-2
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) the Prospectus or any amendment or supplement
thereto as of its date and the Closing Date contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial data contained or incorporated by reference therein or omitted
therefrom or the Statement of Eligibility on Form T-1 of the Trustee, as to
which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The opinions in paragraphs 3 and 4 above shall be subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
For purposes of such counsel's opinion, "Applicable Laws" shall mean the
federal laws of the United States, the laws of the State of New York, the laws
of the State of Illinois and the General Corporation Law of the State of
Delaware, in each case which, in such counsel's experience, are normally
applicable to transactions of the type contemplated by the Underwriting
Agreement and would normally be applicable to general business corporations
which are not engaged in regulated business activities (other than state
securities laws and antifraud laws), but without such counsel having made
special investigation concerning the applicability of any other law, statute,
rule or regulation.
The opinion of counsel to the Company described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
B-3
ANNEX C
Time of Sale Information
o Pricing term sheet, dated June 20, 2007, as filed pursuant to Rule 433
under the Securities Act
ANNEX D
Pactiv Corporation
Pricing Term Sheet
5.875% Notes due 2012
Issuer: Pactiv Corporation
Principal Amount: $250,000,000
Security Type: Senior Note
Maturity: July 15, 2012
Coupon: 5.875%
Price to Public: 99.771%
Yield to Maturity: 5.927%
Spread to Benchmark Treasury: T + 88 bps (0.88%)
Benchmark Treasury: 4.750% due May 31, 2012
Benchmark Treasury Spot and Yield: 98-22 (3)/4 , 5.047%
Interest Payment Dates: July 15 and January 15,
commencing January 15, 2008
Make-Whole Call: T + 15 bps
Trade Date: June 20, 2007
Settlement Date: June 25, 2007 (T+3)
Denominations: $1,000 x $1,000
Ratings: Baa2 (stable) / BBB (negative)
Joint Bookrunners: X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Co-Managers: Banc of America Securities LLC
Barclays Capital Inc.
Xxxxxx Brothers Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
6.400% Notes due 2018
Issuer: Pactiv Corporation
Principal Amount: $250,000,000
Security Type: Senior Note
Maturity: January 15, 2018
Coupon: 6.400%
Price to Public: 99.600%
Yield to Maturity: 6.452%
Spread to Benchmark Treasury: T + 132 bps (1.32%)
Benchmark Treasury: 4.500% due May 15, 2017
Benchmark Treasury Spot and Yield: 95-4+, 5.132%
Interest Payment Dates: July 15 and January 15,
commencing January 15, 2008
Make-Whole Call: T + 20 bps
Trade Date: June 20, 2007
Settlement Date: June 25, 2007 (T+3)
Denominations: $1,000 x $1,000
Ratings: Baa2 (stable) / BBB (negative)
Joint Bookrunners: X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Co-Managers: Banc of America Securities LLC
Barclays Capital Inc.
Xxxxxx Brothers Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling X.X. Xxxxxx Securities Inc. collect at 000-000-0000 or
Xxxxxx Xxxxxxx & Co. Incorporated toll free at 0-000-000-0000.
Any disclaimer or other notice that may appear below is not applicable to this
communication and should be disregarded. Such disclaimer or notice was
automatically generated as a result of this communication being sent by
Bloomberg or another email system.
B-6
