CATERPILLAR INC. $350,000,000 7.000% Notes due 2013 $900,000,000 7.900% Notes due 2018 $250,000,000 8.250% Debentures due 2038 UNDERWRITING AGREEMENT
EXHIBIT 1.1
$350,000,000 7.000%
Notes due 2013
$900,000,000 7.900%
Notes due 2018
$250,000,000 8.250%
Debentures due 2038
To
the Representatives named in Schedule B
hereto
of
the Several Underwriters named in Schedule A
hereto
December 3,
2008
Ladies and
Gentlemen:
Caterpillar Inc.
(the “Company”)
confirms its agreement (the “Agreement”) with you and each of the other
“Underwriters” named in Schedule A hereto
(collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representatives (in such
capacity, the “Representatives”),
with respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of
$350,000,000 principal amount of the Company’s 7.000% Notes due 2013,
$900,000,000 principal amount of the Company’s 7.900% Notes due 2018 and
$250,000,000 principal amount of the Company’s 8.250% Debentures due 2038
(together, the “Securities”) described in Schedule B
hereto. The Securities are to be issued pursuant to an indenture,
dated as of May 1, 1987, as amended and supplemented (the “Indenture”), by and
between the Company and U.S. Bank National Association, as successor trustee
(the “Trustee”). The term “Indenture,” as used
herein, includes the Officers’ Certificates (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Section 301 of the
Indenture.
The Company
understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement
has been executed and delivered.
Certain terms used
herein are defined in Section 19 hereof.
SECTION 1. Representations and
Warranties.
(a) Representations and
Warranties by the Company. The Company represents and warrants
to each Underwriter as of the date hereof, and as of the Closing Time referred
to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration
Requirements. The Company meets the requirements for use of
Form S-3 under the 1933 Act and has filed with the Securities and Exchange
Commission (the “Commission”) an
automatic shelf registration statement, as defined in Rule 405, on Form S-3
(File No. 333-136265) covering the registration of the Securities under the 1933
Act, including a related Base Prospectus. The Company may have filed
with the Commission, as part of an amendment to the Registration Statement or
pursuant to Rule 424(b) (“Rule 424(b)”) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”), one or more preliminary prospectus supplements relating to
the Securities, each of which has previously been furnished to
you. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the 1933 Act and
the 1933 Act Regulations, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
For purposes of
this Agreement, all references to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Final Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the 1934 Act on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the 1934 Act after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
Each of the
Registration Statement and any post-effective amendment thereto has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto or notice
objecting to its use has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
On each Effective
Date, the Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and at the Closing Time, the Final
Prospectus (and any supplement thereto) will, comply in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act Regulations,
the 1934 Act and the respective rules thereunder (the “1934 Act
Regulations”) and the 1939 Act and the respective rules thereunder (the
“1939 Act
Regulations”); on each Effective Date and at the Execution Time, the
Registration Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and at the Closing Time, the Final
Prospectus (together with any supplement thereto) will not include 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, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the 1939
Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto).
(ii) Disclosure
Package. The Disclosure Package, when taken together as a
whole, does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
the preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
(iii) Well-Known Seasoned
Issuer. (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto, if any, for the purposes
of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the 1934 Act or form of prospectus), (iii) at the time the Company or
any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offering relating to the Securities in reliance on the
exemption in Rule 163, and (iv) at the Execution Time (with such date being used
as the determination date for purposes for this clause (iv)), the Company was or
is (as the case may be) a “well-known seasoned issuer” as defined in Rule
405. The Company agrees to pay the fees required by the Commission
relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(iv) Ineligible
Issuer. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and
(ii) as of the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405) without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(v) Issuer Free Writing
Prospectuses. Each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 3(a) hereof do not
include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been superseded
or modified; provided,
however, the foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use
therein.
(vi) Independent
Accountants. The independent registered public accounting firm
that certified the financial statements and supporting schedules incorporated by
reference in the Registration Statement is an independent registered public firm
with respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board (United
States).
(vii) Financial
Statements. The financial statements included in the
Registration Statement, the Disclosure Package and the Final Prospectus,
together with the related schedules and notes, present fairly, in all material
respects, the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; and said financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present fairly, in all
material respects, in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Disclosure Package and the Final Prospectus present
fairly, in all material respects, the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement.
(viii) No Material Adverse Change
in Business. Since the respective dates as of which
information is given in the Disclosure Package and as of the date of the Final
Prospectus, except as otherwise stated therein, (A) there shall have been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”), (B) there shall have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of
business or as disclosed in filings (whether filed or furnished) with the
Securities Exchange Commission, which are material with respect to the Company
and its subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Common Stock in amounts per share that are consistent
with past practice, there shall have been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(ix) Good Standing of the
Company. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Disclosure Package
and the Final Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(x) Good Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) has been duly organized and
is validly existing as a corporation, limited liability company, partnership,
limited partnership or other legal entity recognized by the laws of the
jurisdiction in which such significant subsidiary was formed, in good standing
under the laws of the jurisdiction of its incorporation or formation, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the Final
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or the failure to be
in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Disclosure Package and the Final Prospectus, all of
the issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such
subsidiary.
(xi) Capitalization. The
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(xii) Authorization of
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(xiii) Authorization of the
Indenture. The Indenture has been duly authorized by the
Company and duly qualified under the 1939 Act and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xiv) Authorization of the
Securities. The Securities have been duly authorized and, at
the Closing Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the benefits of,
the Indenture.
(xv) Description of the
Securities and the Indenture. The Securities and the Indenture
will conform in all material respects to the respective statements relating
thereto contained in the Disclosure Package and the Final Prospectus and will be
in substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xvi) Absence of Defaults and
Conflicts. Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default (beyond any applicable
notice and cure period) in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (collectively, “Agreements and
Instruments”), except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and in the Disclosure Package and the Final
Prospectus (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Disclosure Package
and the Final Prospectus under the caption “Use of Proceeds”) and compliance by
the Company with its obligations hereunder and under the Indenture and the
Securities have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults, Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a “Repayment
Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any
subsidiary.
(xvii) Absence of Labor
Dispute. No Labor Dispute with the employees of the Company
exists or, to the knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse Effect.
For purposes of this Agreement, the term “Labor Dispute” shall
mean a controversy between employers and employees concerning conditions of
employment or concerning the association or representation of persons in
negotiating, fixing, maintaining, changing or seeking to arrange terms or
conditions of employment.
(xviii) Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Disclosure Package and the Final Prospectus
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder;
(xix) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution, delivery
or performance of the Indenture by the Company, except such as have been already
made or obtained or will be made or obtained prior to Closing Time under the
1933 Act, the 1933 Act Regulations or the 1939 Act and except as may be required
under state securities laws.
(xx) Possession of Licenses and
Permits. The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental
Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them, except where failure to possess such permits, licenses, approvals,
consents and other authorizations would not, singly or in the aggregate, have a
Material Adverse Effect.
(xxi) Title to
Property. To its knowledge, the Company and its subsidiaries
have good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Disclosure Package and the Final Prospectus (b) would not, singly or in the
aggregate, result in a Material Adverse Effect or (c) do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any
of its subsidiaries.
(xxii) Environmental
Laws. Except as described in the Disclosure Package and the
Final Prospectus and except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(B) the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the actual knowledge
of an officer of the Company(as determined as of the date hereof) there are no
events or circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b) Officer’s
Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to
Underwriters; Closing.
(a) Securities. On
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price set forth in Schedule B, the
respective aggregate principal amounts of Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment
of the purchase price for, and delivery of certificates for, the Securities
shall be made at the offices of Underwriters’ counsel, or at such other place as
shall be agreed upon by the Representatives and the Company, at 9:00
A.M. (New York, New York Time) on the second business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called “Closing
Time”).
Payment shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for
the respective accounts of the Underwriters of the Securities to be purchased by
them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Each of Banc of America Securities LLC and X.X. Xxxxxx
Securities Inc., in each case individually and not as a Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time, as the case may be, but such payment
shall not relieve such Underwriter from its obligations
hereunder. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
SECTION 3. Covenants of the
Company.
The Company
covenants with each Underwriter as follows:
(a) Compliance with Securities
Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 424 and will notify the
Representatives immediately, and confirm the notice in writing, (i) when the
Final Prospectus or any supplement thereto shall have been filed, (ii) for so
long as the Securities remain unsold by the Underwriters, of the receipt of any
comments from the Commission with respect to the Registration Statement,
Preliminary Prospectus or Final Prospectus, or any amendment thereof or
supplement thereto, or any document incorporated therein by reference, (iii) for
so long as the Securities remain unsold by the Underwriters, of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Final Prospectus or for additional information and (iv) for
so long as the Securities remain unsold by the Underwriters, of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any notice of objection to the use of the Registration
Statement pursuant to Rule 401(g), or of any order preventing or suspending the
use of any Preliminary Prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company
will promptly after the parties hereto execute this Agreement effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company
will promptly prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in a form approved by
the Representatives and will file such term sheet pursuant to Rule 433(d) within
the time required by such Rule. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of
Amendments. For so long as the Securities remain unsold by the
Underwriters, the Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement, or any
amendment, supplement or revision (including any Preliminary Prospectus or the
Final Prospectus) to the Base Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration
Statement. The Company has furnished or, upon request, will
deliver to counsel for the Underwriters, without charge, signed copies (which
may be a conformed copy delivered electronically) of the Registration Statement
as originally filed and of each amendment of the Registration Statement filed
with the Commission prior to the Closing Time (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein).
(d) Delivery of
Prospectuses. The Company has delivered to each Underwriter,
without charge, as many copies of each Preliminary Prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. If at any time
prior to the filing of a final prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made at such time, not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is
amended or supplemented; (ii) amend or supplement the Disclosure Package to
correct such statement or omission; and (iii) supply any amendment or supplement
to you in such quantities as you may reasonably request. The Company
will furnish to each Underwriter, without charge, during the period when the
Final Prospectus is required to be delivered under the 1933 Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172),
such number of copies of the Final Prospectus (as amended or supplemented) and
any supplement thereto, and each Issuer Free Writing Prospectus, as such
Underwriter may reasonably request.
(e) Continued Compliance with
Securities Laws. The Company will comply with the 1933 Act and
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939
Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Final Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with the sales of the Securities
(including in circumstances where such requirement may be satisfied pursuant to
Rule 172), any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the Final
Prospectus in order that the Final Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Final Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Final Prospectus comply
with such requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky
Qualifications. The Company will use its reasonable best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for so long as reasonably required for the distribution
of the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as reasonably
required for the distribution of the Securities. The Company will
also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of
such jurisdiction as the Underwriters may request.
(g) Rule
158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of
Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Disclosure
Package under “Use of Proceeds.”
(i) Reporting
Requirements. The Company, during the period when the Final
Prospectus is required to be delivered under the 1933 Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172),
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act
Regulations.
(j) Other
Offerings. During the period beginning from the date of this
Agreement and continuing to and including the Closing Time, the Company will not
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Closing Time and which are
substantially similar to the Securities, without the prior written consent of
the Representatives.
(k) Free Writing
Prospectuses. The Company agrees that, unless it has obtained
or will obtain the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company that, unless it
has obtained or will obtain, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the
Company under Rule 433, other than the information contained in the final term
sheet prepared and filed pursuant to Section 3(a) hereof; provided that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule C
hereto. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (y) it has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
SECTION 4. Payments of
Expenses.
(a) Expenses. The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company’s counsel, accountants and other advisors,
(v) the qualification of the Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each Preliminary Prospectus and of the Final
Prospectus and any amendments or supplements thereto, and of any Issuer Free
Writing Prospectus, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities, and
(ix) any fees charged by investment rating companies for the ratings of the
Securities.
(b) Termination of
Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters; provided, however, if the
Underwriters fail to purchase the Securities because of the termination of this
Agreement pursuant to Section 10 or the occurrence of any event specified in
clauses (ii), (iv) or (v) of Section 9(a), the Company shall not be responsible
for the expenses of any of the Underwriters as described above.
SECTION 5. Conditions of Underwriters’
Obligations.
The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions.
(a) Final Prospectus and
Registration Statement. The Final Prospectus, and any
supplement thereto, have been filed in the manner and within the time period
required by Rule 424(b); the final term sheet contemplated by Section 3(a)
hereof, and any other material required to be filed by the Company pursuant to
Rule 433(d) under the 1933 Act, shall have been filed with the Commission within
the applicable time periods prescribed for such filings by Rule 433; and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement and no notice objecting to its use shall have been issued under the
1933 Act or proceedings therefor initiated or, to the knowledge of the Company,
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for
Company. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxx,
counsel for the Company, in the form attached hereto as Exhibit A, together
with signed or reproduced copies of such letter for each of the other
Underwriters and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for
Underwriters. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of Xxxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters with respect to the
incorporation of the Company, the Securities, the Indenture, the Registration
Statement, the Disclosure Package and the Final Prospectus and other related
matters as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Officers’
Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of a Group President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section l(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission.
(e) Accountants’ Comfort
Letter. At the time of the execution of this Agreement, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the Representatives and
PricewaterhouseCoopers LLP, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information
of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Disclosure Package and
the Final Prospectus.
(f) Bring-down Comfort
Letter. At Closing Time, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) Maintenance of
Rating. At Closing Time, the Securities shall be rated at
least “A2” by Xxxxx’x Investors Service, Inc. (“Moody’s”) and “A” by
Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc. (collectively, “S&P”), and the
Company shall have delivered to the Representatives a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have at least such ratings; and
since the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to the Securities or any of the Company’s other securities
by any “nationally recognized statistical rating organization,” as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company’s
other securities.
(h) Additional
Documents. At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(i) Termination of
Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of
Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact included in the Base Prospectus, any
Preliminary Prospectus or any other preliminary prospectus supplement relating
to the Securities, the Final Prospectus or any Issuer Free Writing Prospectus,
or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) such settlement is effected with the written
consent of the Company; and
(iii) against any and
all expense whatsoever, as incurred (including the fees and disbursements of
counsel chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that the
Company shall not be liable for any of the indemnification obligations presented
in this Section 6(a) to the extent that any such loss, liability, claim, damage
or expense arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives.
(b) Indemnification of Company,
Directors and Officers. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or the Base Prospectus, any Preliminary Prospectus or any
other preliminary prospectus supplement relating to the Securities, the Final
Prospectus or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein.
(c) Actions Against Parties;
Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent
if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution.
If the
indemnification provided for in Section 6 hereof is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement 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) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative
benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Final Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault
of the Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
For purposes of
this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters’ respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their respective
names in Schedule
A hereto and not joint.
SECTION 8. Representations, Warranties
and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of
Agreement.
(a) Termination;
General. The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Disclosure Package, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or (iv) if trading
generally on the New York Stock Exchange or the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission or any other
Governmental authority, or (v) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of
the Underwriters.
If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other Underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the aggregate principal amount
of the Securities to be purchased hereunder, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken
pursuant to this Section shall relieve any defaulting Underwriter from liability
with respect to its default.
In the event of any
such default which does not result in a termination of this Agreement, either
the Representatives or the Company shall have the right to postpone the Closing
Time for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus or in any other
documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for any Underwriter under this Section
10.
SECTION 11. Notices.
All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication or electronic communication.
Notices to the
Underwriters shall be directed to the Representatives, c/o Banc of America
Securities LLC, at Bank of America Tower, One Bryant Park, New York, New York
10036, attention: High Grade Debt Capital Markets Transaction Management; fax
(000) 000-0000;
Notices to the
Company shall be directed to it at Caterpillar, Inc., c/o Treasurer, 100 N.E.
Xxxxx St., Peoria, Illinois, 61629; with a copy to: Caterpillar Inc., c/o
Treasury Counsel, 000 X.X. Xxxxx St., Peoria, Illinois 61629.
SECTION 12. Parties.
This Agreement
shall each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. No Fiduciary
Duty.
The Company hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arms’-length commercial transaction between the Company, on the
one hand, and the Underwriters, on the other, (b) the Underwriters are acting as
principal and not as agent or fiduciary of the Company and (c) the Company’s
engagement of the Underwriters in connection with the offering and the process
leading up to the offering is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
SECTION 14. Integration.
This Agreement
supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Underwriters, or any of them, with respect to the
subject matter hereof.
SECTION 15. Governing Law and
Time.
THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE
APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF
DAY REFER TO NEW YORK, NEW YORK TIME.
SECTION 16. Effect of
Headings.
The Section
headings herein are for convenience only and shall not affect the construction
thereof.
SECTION 17. Waiver of Jury
Trial.
Each party to this
Agreement hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to a trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
thereby.
SECTION
18. Counterparts.
This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
Agreement.
SECTION
19. Definitions.
The terms which
follow, when used in this Agreement, shall have the meanings
indicated.
“1933 Act” shall
mean the Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder.
“1934 Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“1939 Act” shall
mean the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base Prospectus”
shall mean the base prospectus referred to in Section 1(a)(i) contained in the
Registration Statement at the Execution Time.
“Business Day”
shall mean any day other than a Saturday, a Sunday or legal holiday or a day on
which banking institutions or trust companies are authorized or obligated by law
to close in New York City.
“Commission” shall
mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus
used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule C hereto,
(iv) the final term sheet prepared and filed pursuant to Section 3(a) hereto, if
any, and (v) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“Effective Date”
shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective.
“Execution Time”
shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Final Prospectus”
shall mean the prospectus supplement relating to the Securities that was first
filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer Free
Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433. “Preliminary Prospectus” shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in Section 1(a)(i) of this
Agreement, which is used prior to the filing of the Final Prospectus, together
with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in Section 1(a)(i)
of this Agreement, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended.
“Rule 158”, “Rule
163”, “Rule 164”, “Rule 172”, “Rule 401”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer to such rules under the Act.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
|
Very truly
yours,
|
||||||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|||||
|
Name:
|
Xxxxx X.
Xxxxxx
|
|||||
|
Title:
|
Treasurer
|
|||||
|
Accepted as
of the date hereof:
|
||||||
|
As
Representatives of the Several Underwriters
|
||||||
|
BANC OF
AMERICA SECURITIES LLC
|
||||||
|
By:
|
/s/
Xxxx Xxxxx
|
|||||
|
Name:
|
Xxxx
Xxxxx
|
|||||
|
Title:
|
Principal
|
|||||
|
X.X. XXXXXX
SECURITIES INC.
|
||||||
|
By:
|
/s/
Xxxxx Xxxxxx
|
|||||
|
Name:
|
Xxxxx
Xxxxxx
|
|||||
|
Title:
|
Executive
Director
|
|||||
EXHIBIT
A
December 5,
2008
Banc of America
Securities LLC,
X.X. Xxxxxx Securities Inc.,
As Representatives of the Several Underwriters,
c/o Banc of America Securities LLC,
Bank of America Tower
One Bryant Park
New York, New York 10036
Re: Caterpillar
Inc.
Ladies and
Gentlemen:
I am furnishing you
this opinion in compliance with the provisions of Section 5(b) of the
Underwriting Agreement, dated December 3, 2008, between Caterpillar Inc. (the
“Company”) and Banc of America Securities LLC and X.X. Xxxxxx Securities Inc.,
as Representatives of the several Underwriters named in Schedule A to the
Underwriting Agreement (the “Underwriters”), providing for the sale by the
Company and the purchase by the Underwriters of $350,000,000 principal amount of
the Company’s 7.000% Notes due 2013, $900,000,000 principal amount of the
Company’s 7.900% Notes due 2018 and $250,000,000 principal amount of the
Company’s 8.250% Debentures due 2038 (together, the “Securities”) issued
pursuant to the Indenture, dated as of May 1, 1987, as amended and
supplemented (as so amended and supplemented, the “Indenture”), between the
Company and U.S. Bank National Association, as successor Trustee (the
“Trustee”). I have acted as counsel for the Company and as such have
participated in and am familiar with the corporate proceedings relating to the
sale of the Securities by the Company in accordance with the terms of the
Underwriting Agreement. Unless otherwise defined herein, all terms
defined in the Underwriting Agreement shall have the same respective meanings
when used herein.
In this regard, I
have examined relevant corporate documents and based upon such examination and
having regard for legal considerations that I deem relevant and subject to the
assumptions, qualifications and limitations set forth below, I am of the
following opinion:
|
i.
|
The Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with corporate power
and authority to own its properties and conduct its business as described
in the Disclosure Package and the Final
Prospectus;
|
|
ii.
|
The Company
has an authorized capitalization as set forth in the Disclosure Package
and the Final Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
|
|
iii.
|
The Company
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of the State of
Illinois;
|
|
iv.
|
I do not know
of any litigation or any governmental proceeding instituted or threatened
against the Company or any of its consolidated subsidiaries that, in my
opinion, would be likely to result in a judgment or decree having a
Material Adverse Effect or otherwise be required to be disclosed in the
Registration Statement which is not disclosed and accurately summarized,
in all material respects, in the Disclosure
Package;
|
|
v.
|
The
Underwriting Agreement has been duly authorized, executed and delivered by
the Company;
|
|
vi.
|
The
Securities have been duly authorized and, when duly executed and delivered
by the Company, duly authenticated by the Trustee and delivered against
the payment of the purchase price therefore as provided in the
Underwriting Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other
laws relating to or affecting the enforcement of creditors’ rights
generally, and to general principles of equity, regardless of whether
considered in a proceeding in equity or at law; and the Indenture conforms
and the Securities will conform in all material respects to the
descriptions thereof in the Disclosure Package and the Final
Prospectus;
|
|
vii.
|
The Indenture
has been duly authorized, executed and delivered by the Company, and,
assuming the due authorization, execution and delivery by the Trustee,
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to limitations imposed
by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the
enforcement of creditors’ rights generally and to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law; and the Indenture has been duly qualified under the 1939
Act;
|
|
viii.
|
The issue and
sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and the Underwriting
Agreement, and the consummation of the transactions therein contemplated,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement or instrument
known to me to which the Company is a party or by which the Company is
bound, and which conflicts, breaches and defaults, if any, would
individually or in the aggregate have a Material Adverse Effect; nor will
such action result in any violation of the provisions of the Restated
Certificate of Incorporation or the Bylaws of the Company or any statute
of the United States of America or the State of Delaware that are
applicable to transactions of the type contemplated by the Underwriting
Agreement and the Indenture (provided that I express no opinion
as to compliance with the 1933 Act, the 1939 Act, the 1934 Act or the
Delaware Securities Act, or with the Bankruptcy Code of 1978, as amended,
with respect to any proceeding in which the Company is the debtor) or, to
my knowledge, any order of any court or governmental agency or body of the
United States of America or the State of Delaware; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities by the Company or the consummation by the
Company of the other transactions contemplated by the Underwriting
Agreement or the Indenture, except such as have been obtained under the
1933 Act and the 1939 Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the issue and sale of the
Securities;
|
|
ix.
|
The documents
incorporated by reference in the Final Prospectus (other than the
financial statements and related schedules and other financial data
therein, as to which I express no opinion or belief), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the rules
and regulations of the Commission
thereunder;
|
|
x.
|
The
Registration Statement, as of the date on which any part thereof became
effective, and the Final Prospectus, as of the date hereof (other than the
financial statements and related schedules and other financial data
therein, as to which I express no opinion or belief) complied or complies
as to form in all material respects with the requirements of the 1933 Act
and the 1939 Act and the rules and regulations thereunder;
and
|
|
xi.
|
The
statements made in the Base Prospectus under the captions “Description of
the Debt Securities” and “Plan of Distribution” and in the Final
Prospectus under the captions “Description of the Notes and Debentures”
and “Underwriting” are accurate summaries, in all material respects, of
the matters therein set forth insofar as they relate to the provisions of
documents therein described and fairly present the information called for
with respect thereto by the 1933 Act and the rules and regulations
thereunder.
|
In addition, while
I make no representation that I have independently verified the accuracy or
completeness of the information contained in the documents incorporated by
reference in the Disclosure Package and the Final Prospectus, no facts have come
to my attention that have caused me to believe that any of such documents (other
than the financial statements and related schedules and other financial data
therein, as to which I express no opinion or belief), when they were so filed,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
misleading, in each case after excluding any statement in any such documents
which does not constitute part of the Registration Statement, the Disclosure
Package, or the Final Prospectus pursuant to Rule 412 of Regulation C under the
1933 Act; and further, while I make no representation that I have independently
verified the accuracy or completeness of the information contained in the
Registration Statement, the Disclosure Package and the Final Prospectus (other
than as provided by the last clause of paragraph (vi) and under the captions
identified in paragraph (xi) hereof), (i) no facts have come to my
attention that have caused me to believe that any part of the Registration
Statement, insofar as relevant to the offering of the Securities, as of the date
on which such part became effective, or the Disclosure Package, as of the
Execution Time, or the Final Prospectus, as of its date or as of the date hereof
(other than the financial statements and related schedules and other financial
data therein, as to which I express no opinion or belief), contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case after excluding any statement in any such document
which does not constitute part of the Registration Statement, the Disclosure
Package or the Final Prospectus pursuant to Rule 412 of Regulation C
under the 1933 Act; and (ii) I do not know of any contracts or other documents
of a character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Final Prospectus or
required to be described in the Registration Statement or the Final Prospectus
which are not filed or incorporated by reference or described as
required.
With your
permission, I have assumed the following:
|
1.
|
the
authenticity of original documents and the genuineness of all
signatures;
|
|
2.
|
the
conformity to the originals of all documents submitted to me as
copies;
|
|
3.
|
the truth,
accuracy and completeness of the information, factual matters,
representations and warranties contained in the records, documents,
instruments and certificates I have reviewed;
and
|
|
4.
|
that, except
as specifically covered in the opinions set forth above, the documents
referred to herein were duly authorized, executed and delivered on behalf
of the respective parties thereto and that such documents are legal, valid
and binding obligations of such
parties.
|
Whenever a
statement herein is qualified by the phrases “I do not know,” “I have no reason
to believe,” “known to me” or “to my knowledge,” it is intended to indicate
that, during the course of my representation of the Company, no information that
would give me current actual knowledge of the inaccuracy of such statement has
come to my attention as I have rendered legal services in connection with the
representation described in the introductory paragraph of this
opinion. However, I have not undertaken any independent investigation
to determine the accuracy of such statement, and any limited inquiry or review
undertaken by me during the preparation of this opinion should not be regarded
as such an independent investigation; no inference as to my knowledge of any
matters bearing on the accuracy of any such statement should be drawn from the
fact of my representation of the Company.
My opinion that any
document is valid, binding or enforceable is qualified as to:
|
1.
|
limitations
imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the
enforcement of creditors’ rights
generally;
|
|
2.
|
the
possibility that certain covenants and provisions for the acceleration of
the maturity of the Securities may not be enforceable if enforcement would
be unreasonable under the then existing circumstances;
and
|
|
3.
|
general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at
law.
|
I express no
opinion as to laws other than laws of the State of Illinois, the federal law of
the United States of America and the General Corporate Law of the State of
Delaware.
This opinion is
solely for your benefit and may not be relied upon, used, circulated, quoted or
referred to, nor may copies hereof be delivered to, any other person without my
prior written approval. I disclaim any obligation to update this
opinion for events occurring or coming to my attention after the date
hereof.
Sincerely,
Securities
Counsel
SCHEDULE
A
|
Underwriter
|
Principal
Amount
of
Notes
due
2013
|
Principal
Amount
of
Notes
due
2018
|
Principal
Amount
of
Debentures
due
2038
|
|||||||||
|
Banc of
America Securities LLC
|
$
|
122,500,000
|
$
|
315,000,000
|
$
|
87,500,000
|
||||||
|
X.X. Xxxxxx
Securities Inc.
|
122,500,000
|
315,000,000
|
87,500,000
|
|||||||||
|
SG Americas
Securities, LLC
|
26,250,000
|
67,500,000
|
18,750,000
|
|||||||||
|
Commerzbank
Capital Markets Corp.
|
12,250,000
|
31,500,000
|
8,750,000
|
|||||||||
|
Mitsubishi
UFJ Securities International plc
|
12,250,000
|
31,500,000
|
8,750,000
|
|||||||||
|
Xxxxxxx,
Xxxxx & Co.
|
10,500,000
|
27,000,000
|
7,500,000
|
|||||||||
|
BNP Paribas
Securities Corp.
|
8,750,000
|
22,500,000
|
6,250,000
|
|||||||||
|
ING Financial
Markets LLC
|
8,750,000
|
22,500,000
|
6,250,000
|
|||||||||
|
KBC Financial
Products USA Inc.
|
8,750,000
|
22,500,000
|
6,250,000
|
|||||||||
|
Lloyds TSB
Bank Plc
|
8,750,000
|
22,500,000
|
6,250,000
|
|||||||||
|
Standard
Chartered Bank
|
8,750,000
|
22,500,000
|
6,250,000
|
|||||||||
|
Total
|
$
|
350,000,000
|
$
|
900,000,000
|
$
|
250,000,000
|
||||||
SCHEDULE
B
7.000%
Notes due 2013
7.900%
Notes due 2018
8.250%
Debentures due 2038
Title
of Securities:
7.000% Notes due
2013
7.900% Notes due
2018
8.250% Debentures
due 2038
Aggregate
Principal Amount:
$350,000,000 for
7.000% Notes due 2013
$900,000,000 for
7.900% Notes due 2018
$250,000,000 for
8.250% Debentures due 2038
Price
to Public:
99.976% of the
principal amount of the Notes for 7.000% Notes due 2013, plus accrued interest,
if any, from December 5, 2008
99.832% of the
principal amount of the Notes for 7.900% Notes due 2018, plus accrued interest,
if any, from December 5, 2008
99.238% of the
principal amount of the Debentures for 8.250% Debentures due 2038, plus accrued
interest, if any, from December 5, 2008
Purchase
Price by Underwriters:
99.626% of the
principal amount of the Notes for 7.000% Notes due 2013, plus accrued interest,
if any, from December 5, 2008
99.357% of the
principal amount of the Notes for 7.900% Notes due 2018, plus accrued interest,
if any, from December 5, 2008
98.363% of the
principal amount of the Debentures for 8.250% Debentures due 2038, plus accrued
interest, if any, from December 5, 2008
Underwriting
Discount or Commission (including aggregate dollar amount):
0.350% of the
principal amount of the Notes for 7.000% Notes due 2013
($1,225,000)
0.475% of the
principal amount of the Notes for 7.900% Notes due 2018
($4,275,000)
0.875% of the
principal amount of the Debentures for 8.250% Debentures due 2038
($2,187,500)
Specified
Funds for and Method of Payment of Purchase Price and Underwriting Commission
(if not paid in the form of a discount):
Same-day funds, to
be paid by wire transfer
Indenture:
Indenture, dated as
of May 1, 1987, as amended and supplemented to date (the “Indenture”), made by
and between the Company and U.S. Bank National Association, as successor
trustee
Maturity
Date:
December 15, 2013
for 7.000% Notes due 2013
December 15, 2018
for 7.900% Notes due 2018
December 15, 2038
for 8.250% Debentures due 2038
Interest
Rate:
7.000% for Notes
due 2013
7.900% for Notes
due 2018
8.250% for
Debentures due 2038
Interest
Payment Dates:
June 15 and
December 15, commencing June 15, 2009
Regular
Record Dates:
June 1 or December
1 immediately preceding the applicable interest payment date
Optional
Redemption Provisions:
The Notes and
Debentures may be redeemed in whole at any time or in part from time to time, at
the Company’s option, at a redemption price equal to the greater of
|
§
|
100% of the
principal amount of the Notes or Debentures to be redeemed,
or
|
|
§
|
the sum of
the present values of the remaining scheduled payments of principal and
interest on the Notes or Debentures to be redeemed, discounted to the date
of redemption on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the applicable Treasury Rate plus 50 basis
points,
|
plus accrued and
unpaid interest on the principal amount being redeemed to the redemption
date.
“Treasury Rate”
means, with respect to any redemption date, (1) the yield, under the heading
which represents the average for the immediately preceding week, appearing in
the most recently published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue (or, if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month), or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of
such redemption date. The Treasury Rate will be calculated on the third Business
Day preceding the redemption date.
“Business Day”
means any calendar day that is not a Saturday, Sunday or legal holiday in New
York, New York and on which commercial banks are open for business in New York,
New York.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining
term (“Remaining Life”) of the Notes or Debentures to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life of such Notes or Debentures.
“Comparable
Treasury Price” means (1) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (2) if, after seeking at least five
Reference Treasury Dealer Quotations and excluding the highest and lowest
Reference Treasury Dealer Quotations, the Independent Investment Banker obtains
fewer than five such Reference Dealer Quotations, the average of all such
quotations.
“Independent
Investment Banker” means any of Banc of America Securities LLC or
X.X. Xxxxxx Securities Inc. and any of their respective successors, as appointed
by the Company, or, if any of the foregoing is unwilling or unable to select the
Comparable Treasury Issue, a nationally recognized investment banking
institution which is a Primary Treasury Dealer appointed by the
Company.
“Reference Treasury
Dealer” means (1) any of Banc of America Securities LLC or X.X. Xxxxxx
Securities Inc. and any of their respective successors, as appointed by the
Company, provided, however, that if any of the foregoing shall cease to be a
primary U.S. government securities dealer in New York, New York (a “Primary
Treasury Dealer”), the Company will substitute for such dealer another Primary
Treasury Dealer, and (2) any other nationally recognized Primary Treasury Dealer
selected by the Independent Investment Banker and acceptable to the
Company.
“Reference Treasury
Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York, New York time, on the
third Business Day preceding such redemption date.
Holders of notes or
debentures to be redeemed will receive notice thereof by first-class mail at
least 30 and not more than 60 days before the date fixed for
redemption. If fewer than all of the Notes or Debentures are to be
redeemed, the Trustee will select the particular notes or debentures or portions
thereof for redemption from the outstanding notes or debentures not previously
called, pro rata or by lot, or in such other manner as the Company shall
direct.
Sinking
Fund Provisions:
No
sinking fund provisions
Manner
of Delivery of Securities:
Registered Global
Securities through The Depository Trust Company
Time
of Delivery:
9:00 A.M., New York
time, on December 5, 2008
Closing
Location:
Xxxxxxxx &
Xxxxxxxx LLP
000 Xxxxx
Xxxxxx
New York, New York
10004
Names
and Addresses of the Representatives:
Banc of America
Securities LLC
Bank of America
Tower
One Bryant
Park
New York, New York
10036
(000)
000-0000
X.X. Xxxxxx
Securities Inc.
000 Xxxx
Xxxxxx
New York, NY
10017-2014
(000)
000-0000
Schedule
C
December
3, 2008
Filed
Under Rule 433
Registration
No. 333-136265
Final
Term Sheet
$1,500,000,000
7.000%
Notes due 2013
7.900%
Notes due 2018
8.250%
Debentures due 2038
|
Issuer:
|
|
|
Securities:
|
7.000% Notes
due 2013
7.900% Notes
due 2018
8.250%
Debentures due 2038
|
|
Size:
|
$350mm for
7.000% Notes due 2013
$900mm for
7.900% Notes due 2018
$250mm for
8.250% Debentures due 2038
|
|
Maturity:
|
December 15,
2013 for 7.000% Notes due 2013
December 15,
2018 for 7.900% Notes due 2018
December 15,
2038 for 8.250% Debentures due 2038
|
|
Coupon:
|
7.000% for
Notes due 2013
7.900% for
Notes due 2018
8.250% for
Debentures due 2038
|
|
Price to
Public:
|
99.976% for
Notes due 2013
99.832% for
Notes due 2018
99.238% for
Debentures due 2038
|
|
Yield to
Maturity:
|
7.005% for
Notes due 2013
7.924% for
Notes due 2018
8.319% for
Debentures due 2038
|
|
Spread to
Benchmark Treasury
|
+ 535 basis
points for Notes due 2013
+ 525 basis
points for Notes due 2018
+ 510 basis
points for Debentures due 2038
|
|
Benchmark
Treasury:
|
UST 2.000%
due November 30, 2013
UST 3.750%
due November 15, 2018
UST 4.375%
due February 15, 2038
|
|
Benchmark
Treasury Price & Yield:
|
101-20 ¾:
1.655% for UST due November 30, 2013
109-11:
2.674% for UST due November 15, 2018
121-25:
3.219% for UST due February 15, 2038
|
|
Interest
Payment Dates:
|
June 15 and
December 15, commencing June 15, 2009
|
|
Optional
Redemption:
|
At a discount
rate of Treasury plus 50 basis points for Notes due 2013
At a discount
rate of Treasury plus 50 basis points for Notes due 2018
At a discount
rate of Treasury plus 50 basis points for Debentures due
2038
|
|
Expected
Settlement Date:
|
T+ 3;
December 5, 2008
|
|
CUSIP:
|
149123 BP5
for Notes due 2013
149123 BQ3
for Notes due 2018
149123 BR1
for Debentures due 2038
|
|
Anticipated
Ratings:
|
A2 by Xxxxx’x
Investors Service, Inc., A by Standard & Poor’s Ratings Services and
A+ by Fitch Ratings, Inc.
|
|
Note: A securities
rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
|
|
|
Joint
Book-Running Managers:
|
Banc of
America Securities LLC
X.X. Xxxxxx
Securities Inc.
|
|
Senior
Co-Manager:
|
SG Americas
Securities, LLC
|
|
Junior
Co-Managers:
|
Commerzbank
Capital Markets Corp.
|
|
Xxxxxxx,
Xxxxx & Co.
|
|
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Lloyds TSB
Bank Plc
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Mitsubishi
UFJ Securities International plc
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Standard
Chartered Bank
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BNP Paribas
Securities Corp.
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ING Financial
Markets LLC
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KBC Financial
Products USA Inc.
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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 Banc of America
Securities LLC toll-free at 0 (000) 000-0000 or X.X. Xxxxxx Securities Inc.
collect at 0 (000) 000-0000.
