The Black & Decker Corporation Underwriting Agreement
The Black
& Xxxxxx Corporation
$350,000,000
8.950%
Senior Notes Due 2014
March 31,
2009
To the
Representatives named in
Schedule I
hereto of the several
Underwriters
named in
Schedule II
hereto
Ladies
and Gentlemen:
The Black
& Xxxxxx Corporation, a corporation organized under the laws of Maryland
(the “Company”), proposes to sell to the several underwriters named in
Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the “Securities”), to be issued
under an indenture, dated as of November 16, 2006, between the Company and The
Bank of New York Mellon, as trustee (the “Trustee”), as supplemented by the
Second Supplemental Indenture, to be dated as of April 3, 2009, between the
Company and the Trustee (the “Indenture”). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange
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 Exchange 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. Certain terms
used herein are defined in Section 20 hereof.
1. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any
amendments
thereto filed prior to the Execution Time, became effective upon filing. The
Company may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each of which has previously
been furnished to you. The Company will file with the Commission 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 Act and the rules thereunder, 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).
(b) On
each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date (as defined herein), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; 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; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, 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 and
Qualification (Form T-1) under the Trust Indenture 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), it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(c) The
Disclosure Package 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. 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, it
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being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section 8
hereof.
(d) (i)
At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange 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 offer
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 of 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).
(e) (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.
(f) Each
Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts
with the information contained in the Registration Statement, the Base
Prospectus, the Preliminary Prospectus or the Final Prospectus, including any
document incorporated therein by reference, that has not been superseded or
modified. 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 any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(g) The
Company and each of its material subsidiaries
has been duly incorporated and is validly existing and in good standing under
the laws of its respective jurisdictions of incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which its respective ownership or lease of property or the
conduct of its respective business requires such qualification, and has all the
power and authority necessary to own or hold its respective properties and to
conduct the respective business in which it is engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), results of operations or business of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”).
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(h) All
of the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable. All of the outstanding shares of capital stock of
each material subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction upon voting or transfer or any other claim of any
third party (except for such liens, charges, encumbrances, security interests,
restrictions or claims that could not reasonably be expected to have a Material
Adverse Effect).
(i) The
Company has the full right, power and authority to execute and deliver this
Agreement, the Indenture and the Securities (collectively, the “Transaction
Documents”) and to perform its obligations hereunder and thereunder; and all
corporate action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the consummation
of the transactions contemplated thereby have been duly and validly
taken.
(j) This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a
valid and legally binding agreement of the Company.
(k) The
Indenture has been duly authorized by the Company and, when duly executed and
delivered in accordance with its terms by the Trustee, will constitute a valid
and legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors’ rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law). On the Closing Date (as herein
defined), the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder.
(l) The
Securities have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors’ rights generally and by
general equitable principles (whether considered in a proceeding in equity or at
law).
(m) The
Securities conform in all material respects to the description thereof contained
in the Disclosure Package and the Final Prospectus.
(n) The
execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the Securities and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents do not and will not (i)
conflict
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with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws (or any other comparable organizational
documents) of the Company or any of its material subsidiaries or (iii) result in
the violation of any statute or any judgment, order, decree, rule or regulation
of any court or arbitrator or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets, except for any violation set forth in this clause (iii) which would not
be material to the Company and its subsidiaries taken as a whole and which would
not adversely affect the consummation of the transactions contemplated hereby;
and except for such
consents, approvals, authorizations, filings, registrations or qualifications
which shall have been obtained or made prior to the Closing Date or as may be
required to be obtained or made under applicable state securities laws, no
consent, approval, authorization or order of, or filing or registration with,
any such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the Securities and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents.
(o) Ernst
& Young LLP is a firm of independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder. The
historical financial statements (including the related notes and supporting
schedules) contained or incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Final Prospectus comply as to form in all
material respects with the applicable requirements under the Act and the
Exchange Act; such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods covered thereby (except for the adoption of new accounting
pronouncements during the periods covered thereby as disclosed in the
Registration Statement) and fairly present the financial position of the
entities purported to be covered thereby at the respective dates indicated and
the results of their operations and their cash flows for the respective periods
indicated; and the financial information contained or incorporated by reference
in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus is derived from the accounting records of the Company and its
subsidiaries and fairly present the information purported to be shown
thereby.
(p) Except
as described in the Disclosure Package and the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or any
of its subsidiaries is the subject which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably
be expected to have a
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Material
Adverse Effect, and, to the best knowledge of the Company, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(q) Neither
the Company nor any of its material subsidiaries is (i) in violation of its
charter or by-laws (or other comparable organizational documents), (ii) in
default in any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject or (iii) in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or conduct of its business,
except in the case of clauses (ii) and (iii) for such defaults or violations
which would not, either individually or in the aggregate, have a Material
Adverse Effect.
(r) The
Company and each of its subsidiaries owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights, licenses
and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses, except where the failure to so own
or possess such rights or to use such patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses and know-how would not, singularly or in the aggregate,
have a Material Adverse Effect; and the conduct of their respective businesses
will not conflict in any material respect with, and the Company and its
subsidiaries have not received any notice of any claim of conflict with any such
rights of others which could have a Material Adverse Effect.
(s) The
Company and each of its subsidiaries has good and marketable title in fee simple
to, or have valid rights to lease or otherwise use, all items of real and
personal property which are material to the business of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except such as do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries or could not reasonably be expected to have a Material Adverse
Effect.
(t) Except
as described in the Disclosure Package and the Final Prospectus, there has been
no storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes or
other hazardous substances by, due to or caused by the Company or any of its
subsidiaries (or, to the best knowledge of the Company, any other entity
(including any predecessor) for whose acts or omissions the Company or any of
its subsidiaries is or could reasonably be expected to be liable) upon any of
the property now or previously owned or leased by the Company or any of its
subsidiaries in violation of any statute or any ordinance, rule
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(including
rule of common law), regulation, order, judgment, decree or permit, or which
would, under any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability that
(taking into account, among other things, the reasonable likelihood of an
adverse determination and the availability of contributions from other
potentially responsible parties) could reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which the Company or any of its subsidiaries has any knowledge that
(taking into account, among other things, the reasonable likelihood of an
adverse determination and the availability of contributions from other
potentially responsible parties) could reasonably be expected to have,
singularly or in the aggregate with all such discharges and other releases, a
Material Adverse Effect.
(u) Neither
the Company nor any of its affiliates has taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Securities.
(v) No
forward-looking statement (within the meaning of Section 27A of the Act and
Section 21E of the Exchange Act) contained in the Disclosure Package and the
Final Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(w) Since
the date as of which information is given in the Disclosure Package and the
Final Prospectus (exclusive of amendments or supplements after the date hereof),
except as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
management or business prospects of the Company and its subsidiaries, whether or
not arising in the ordinary course of business, (ii) none of the Company or any
of its subsidiaries has incurred any material loss, liability or obligation,
direct or contingent, other than in the ordinary course of business, (iii) none
of the Company or any of its subsidiaries has entered into any material
transaction other than in the ordinary course of business and (iv) there has not
been any change in the capital stock (except for transactions relating to
share-based compensation plans) or any increase greater than $25 million in the
aggregate principal amount of long-term debt of the Company and any of its
subsidiaries (including current maturities), or any dividend or distribution of
any kind declared, paid or made by the Company or any of its subsidiaries on any
class of its capital stock, or any redemption in respect thereof.
(x) The
Company is in compliance in all material respects with the applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002 that are effective and the rules and
regulations of the Commission that have been adopted and are effective
thereunder.
(y) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are
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executed
in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its subsidiaries are not
aware of any material weakness in their internal controls over financial
reporting.
(z) The
Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
(aa) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and
Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I
hereto the principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
3. Delivery and
Payment. Delivery of and payment for the Securities shall be
made on the date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
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4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements. The
Company agrees with the several Underwriters that:
(a) Prior
to the termination of the offering of the Securities, the Company will not file
any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. The Company will cause any Preliminary Prospectus and the
Final Prospectus, properly completed, and any supplement thereto to be filed in
a form approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) when
any Preliminary Prospectus and the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b),
(ii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission or its staff for any amendment
of the Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) The
Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form approved by
you and attached as Schedule IV hereto and to file such term sheet pursuant to
Rule 433(d) within the time required by such Rule.
(c) If,
at any time prior to the filing of the 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 or the circumstances then prevailing 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.
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(d) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented 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, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representatives of any such
event, (ii) prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or omission or effect
such compliance, (iii) use its best efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon
as practicable in order to avoid any disruption in use of the Final Prospectus
and (iv) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(e) As
soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(g) The
Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(h) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, 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
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to be
filed by the Company with the Commission or retained by the Company under Rule
433, other than a free writing prospectus containing the information contained
in the final term sheet prepared and filed pursuant to Section 5(b) hereto;
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
III 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.
(i) The
Company will not, without the prior written consent of the Representatives,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
debt securities issued or guaranteed by the Company that would mature more than
one year after the Business Day set forth on Schedule I hereto and that are
substantially similar to the Securities or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule I
hereto.
(j) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(k) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) any registration or
qualification of the Securities for offer and sale under the securities or
blue
11
sky laws
of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and
qualification); (vi) any filings required to be made with the Financial
Industry Regulatory Authority (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such filings);
(vii) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and
(x) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
6. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The
Preliminary Prospectus and 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 5(b) hereto, and
any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The
Company shall have requested and caused Miles & Stockbridge P.C., counsel
for the Company, to have furnished to the Representatives their opinion, dated
the Closing Date and addressed to the Representatives, to the effect
that:
(i) The
Company and each of the subsidiaries listed on Schedule A to such opinion (the
“Major Subsidiaries”) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification (other than those jurisdictions in which the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect), and have
all corporate power necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) The
Company has the full corporate power to conduct its business as described in the
Disclosure Package and the Final Prospectus;
(iii) All
of the issued shares of stock of each Major Subsidiary are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, except for such liens, encumbrances, equities or claims as could not
reasonably be expected to have a Material Adverse Effect;
12
(iv) The
Company has the requisite corporate power to issue and deliver the
Securities. The Securities have been duly authorized, executed and
delivered by the Company and, assuming that the Securities have been
authenticated by the Trustee in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement, constitute legal, valid and binding obligations of the Company,
entitled to the benefits provided by the Indenture and enforceable against the
Company in accordance with their terms;
(v) The
Company has the requisite corporate power to execute, deliver and perform its
obligations under the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and has been duly qualified
under the Trust Indenture Act and, assuming due authorization, execution and
delivery by the Trustee, is the legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms.
(vi) The
Company has the requisite corporate power to execute, deliver and perform its
obligations under this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company;
(vii) The
issuance, sale and delivery of the Securities, the execution, delivery and
performance of the Transaction Documents, the compliance by the Company with the
terms therein and the consummation by the Company of the transactions
contemplated hereby and thereby will not (i) to such counsel’s knowledge,
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter or by-laws of the Company or any of the Major
Subsidiaries or (iii) to such counsel’s knowledge, result in any violation of
any statute or any judgment, order, decree, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of the
Major Subsidiaries or any of their properties or assets, which violation, in the
case of clause (iii), could reasonably be expected to have a Material Adverse
Effect or would adversely affect the consummation of the transactions
contemplated by the Transaction Documents; and to such counsel’s knowledge no
consent, approval, authorization or order of, or filing, registration or
qualification with, any such court or governmental agency or body is required
for the issuance, authentication, sale and delivery of the Securities or the
authorization, execution, delivery and performance of each of the Transaction
Documents by the Company and the consummation of the transactions contemplated
thereby, except for such consents, approvals, authorizations, filings, orders,
filings, registrations or qualifications (i) which have been obtained or made
prior to the Closing Date and (ii) as may be required to be obtained or made
under applicable state securities laws;
13
(viii) To
the knowledge of such counsel, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or its or their
property, of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in any Preliminary Prospectus and the Final
Prospectus, and, to the knowledge of such counsel, there is no franchise,
contract or other document of a character required to be described in the
Registration Statement, any Preliminary Prospectus or Final Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not described or
filed as required;
(ix) The
statements set forth under the headings “Description of Debt Securities“,
“Description of the Notes” and “Material U.S. Federal Income Tax Considerations”
in the Disclosure Package and the Final Prospectus, insofar as they constitute
summaries of documents, are accurate in all material respects; and
(x)
the Registration Statement has become effective under the Act; any
required filing of the Base Prospectus, any Preliminary Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or threatened; and the
Registration Statement and the Final Prospectus including any document
incorporated by reference or deemed incorporated by reference in the
Registration Statement (other than the financial statements and other financial
and statistical information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder.
14
which
such counsel need express no opinion); and (ii) no facts have come to the
attention of such counsel which causes it to believe that the Disclosure
Package, as amended or supplemented at the Execution Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial statements and
schedules and other financial information and statistical data contained
therein, as to which such counsel need express no opinion);
In
rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Maryland or
the Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. In rendering the foregoing opinion, such counsel may also
state that the opinions in paragraphs (iv) and (v) above are subject to the
qualification that the enforceability of the Company’s obligations under the
Securities and the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws relating to or
affecting creditors’ rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and by an implied covenant of good faith and fair
dealing. For purposes of rendering the opinions in paragraphs (iv)
and (v) above,
Miles & Stockbridge P.C. may rely upon the opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP as to matters of New York law. References to the Final
Prospectus in this paragraph (b) shall also include any supplements thereto
at the Closing Date.
(c) The
Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Disclosure
Package, the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The
Company shall have furnished to the Representatives a certificate of the
Company, signed by its Chief Executive Officer, President, Senior Vice President
or Vice President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Disclosure
Package, the Final Prospectus and any supplements or amendments thereto, and
this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
15
(ii) no
stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
(iii) since
the date of the most recent financial statements included in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(e) The
Company shall have requested and caused Ernst & Young LLP to have furnished
to the Representatives, at the Execution Time and at the Closing Date, letters
(which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are an independent registered public accounting firm within
the meaning of the Act and the Exchange Act and the respective applicable rules
and regulations adopted by the Commission thereunder and stating in effect
that:
(i) in
their opinion the audited financial statements and related schedule included or
incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus and reported on by them comply as to form
with the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(ii) on
the basis of carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and audit committee of the Company; and inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 2008, nothing came to their attention which
caused them to believe that, with respect to the period subsequent to December
31, 2008, there were any changes, at a specified date not more than five days
prior to the date of the letter, in long-term debt or capital stock of the
Company and its subsidiaries or decreases in stockholders’ equity as compared
with the amounts shown on the December 31, 2008 audited consolidated balance
sheet included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, or for the period from
January 1, 2009 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in net revenues or
operating earnings or in total or per share amounts of net earnings of the
Company and its subsidiaries, except in
16
all
instances for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; and
(iii) they
have performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company and its subsidiaries)
set forth in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus and in the Company’s Annual Report on Form 10-K incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References
to the Final Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
(f)
Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment or supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto) the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(g) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(h) Prior
to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may
reasonably request.
If any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance
17
to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and
Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or in any amendment thereof, or in
the Base Prospectus, any Preliminary Prospectus or any other preliminary
prospectus supplement relating to the Securities, the Final Prospectus, any
Issuer Free Writing Prospectus or the information contained in the final term
sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
18
Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth (i) in
the last paragraph of the cover page regarding delivery of the Securities and,
under the heading “Underwriting”, (ii) the list of Underwriters and their
respective participation in the sale of the Securities, (iii) the sentences
related to concessions and reallowances and (iv) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing
Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any
claim or the commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to assume the defense in any action for which
indemnification is sought with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party other than reasonable costs of investigation except as set
forth below. Notwithstanding the indemnifying party’s election to
assume the defense of an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying will not have the right to direct the defense of
such on behalf of the indemnified party), (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at
19
the
expense of the indemnifying party. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity
agreements contained in this Section 8, shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any action for which
indemnification is sought. No indemnifying party shall be liable for
any settlement of any action for which indemnification is sought without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. An indemnifying party will
not, without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding 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) In
the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by
20
the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i)
trading in the Company’s Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such exchange, (ii) a banking moratorium
shall have been declared either by federal or New York State authorities or
there has occurred a material disruption in commercial banking or securities
settlement or clearance services or (iii) there shall have occurred a material
adverse change in the financial
21
markets
of the United States or in the international financial markets or any outbreak
or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis if the effect of any such event
listed in this clause (iii) on financial markets is such as to make it, in the
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by any Preliminary
Prospectus or the Final Prospectus (exclusive of any amendment or supplement
thereto).
11. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7, 8 and 16 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (000)
000-0000) and confirmed to the General Counsel, Citigroup Global Markets Inc.,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at The
Black & Xxxxxx Corporation, 000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and General
Counsel.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No Fiduciary Duty.
The Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and
not as an 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.
15. 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.
22
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
17. Waiver of Jury
Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base
Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City or Baltimore, Maryland.
“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 III hereto, (iv) the final term
sheet prepared and filed pursuant to Section 5(b) 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 becomes
effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
23
“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 paragraph 1(a) above 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
paragraph 1(a) above, 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 405”, “Rule 415”,
“Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the
Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned
Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
24
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the several
Underwriters.
|
Very
truly yours,
|
||||
|
The
Black and Xxxxxx Corporation
|
||||
|
By:
|
/s/
XXXX X. XXXXXXXXXXX
|
|||
|
|
Name:
Xxxx X. Xxxxxxxxxxx
|
|||
|
|
Title:
Vice President – Investor Relations
and
Treasurer
|
|||
The
foregoing Agreement is
hereby
confirmed and accepted
as of the
date specified in
Schedule I
hereto.
Citigroup
Global Markets Inc.
Banc of
America Securities LLC
X.X.
Xxxxxx Securities Inc.
|
By:
|
Citigroup
Global Markets Inc.
|
|
By:
|
/s/ XXXXX X.
XXXXXXXXX
|
||
|
|
Name:
Xxxxx X. Xxxxxxxxx
|
||
|
|
Title:
Managing Director
|
For
themselves and the other
several
Underwriters, if any,
named in
Schedule II to the
foregoing
Agreement.
SCHEDULE
I
Underwriting
Agreement dated March 31, 2009
Registration
Statement No. 333-138604
Representative(s):
Citigroup Global Markets Inc.; Banc of America Securities LLC; X.X. Xxxxxx
Securities Inc.
Title,
Purchase Price and Description of Securities:
Title: 8.950%
Senior Notes Due 2014
Principal
amount: $350,000,000
Purchase
price (include accrued
interest
or amortization, if
any): 98.207%
of the principal amount of the Securities, plus accrued interest, if any, on the
Securities from April 3, 2009
Sinking
fund provisions: None
Redemption
provisions: The Securities will be subject to a make-whole redemption
at the Adjusted Treasury Rate (as defined in the Indenture) plus 50 basis
points, as set forth
in the Final Prospectus.
Change of
Control Put: The Securities will be subject to a change of control
repurchase event as set forth in the Preliminary Prospectus and the Final
Prospectus.
Other
provisions: The Securities will be subject to defeasance and covenant
defeasance as provided in the Indenture.
Closing
Date, Time and Location: April 3, 2009 at 10:00 a.m. at Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
Type of
Offering: Non-delayed
Date
referred to in Section 5(i) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s): April 6, 2009
SCHEDULE
II
|
Underwriters
|
Principal
Amount
of
Securities to
be Purchased
|
|||
|
Citigroup
Global Markets Inc.
|
$ | 87,500,000 | ||
|
Banc
of America Securities LLC
|
78,750,000 | |||
|
X.X.
Xxxxxx Securities Inc.
|
78,750,000 | |||
|
BNP
Paribas Securities Corp.
|
24,500,000 | |||
|
Commerzbank
Capital Markets Corp.
|
24,500,000 | |||
|
Mitsubishi
UFJ Securities (USA), Inc.
|
24,500,000 | |||
|
ING
Financial Markets LLC
|
10,500,000 | |||
|
HSBC
Securities (USA) Inc.
|
5,250,000 | |||
|
Mizuho
Securities USA Inc.
|
5,250,000 | |||
|
SG
Americas Securities, LLC
|
5,250,000 | |||
|
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
5,250,000 | |||
|
Total
|
$ | 350,000,000 | ||
SCHEDULE
III
(Schedule
of Free Writing Prospectuses included in the Disclosure Package)
|
|
·
|
Final
term sheet, dated March 31, 2009, relating to the Securities, as filed
pursuant to Rule 433 under the Securities
Act.
|
SCHEDULE
IV
Final
Term Sheet
Filed
pursuant to Rule 433
Dated March 31,
2009
Relating
to
Prospectus
Supplement dated March 31, 2009 to
Registration
Statement No. 333-138604
The
Black & Xxxxxx Corporation
$350,000,000
8.950% Senior Notes due 2014
|
Issuer:
|
The
Black & Xxxxxx Corporation
|
|
|
Principal
Amount:
|
$350,000,000
|
|
|
Title
of Securities:
|
8.950%
Senior Notes due 2014
|
|
|
Trade
Date:
|
March
31, 2009
|
|
|
Original
Issue Date (Settlement Date):
|
April
3, 2009
|
|
|
Maturity
Date:
|
April
15, 2014
|
|
|
Yield
to Maturity:
|
9.250%
|
|
|
Spread
to Benchmark Treasury:
|
754.9
basis points
|
|
|
Benchmark
Treasury:
|
1.750%
due March 31, 2014
|
|
|
Benchmark
Treasury Yield:
|
1.701%
|
|
|
Public
Offering Price (Issue Price):
|
98.807%
of the Principal Amount thereof
|
|
|
Interest
Rate:
|
8.950%
per annum
|
|
|
Interest
Payment Dates:
|
Semi-annually
in arrears on each April 15 and October 15, commencing October 15,
2009.
|
|
|
Redemption
Provision:
|
Make-whole
call at the Adjusted Treasury Rate plus 50 basis
points.
|
|
|
Ratings:
|
Baa3
/ BBB / BBB
|
|
|
CUSIP
/ ISIN:
|
091797
AP5 / US091797AP56
|
|
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets Inc., Banc of America Securities LLC and X.X. Xxxxxx
Securities Inc.
|
|
|
Senior
Co-Managers:
|
BNP
Paribas Securities Corp., Commerzbank Capital Markets Corp., Mitsubishi
UFJ Securities (USA), Inc. and ING Financial Markets
LLC
|
|
|
Junior
Co-Managers:
|
HSBC
Securities (USA) Inc., Mizuho Securities USA Inc., SG Americas Securities,
LLC and SunTrust Xxxxxxxx Xxxxxxxx,
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.
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 (i) Citigroup Global Markets Inc. toll free
1-877-858-5407, (ii) Banc of America Securities LLC toll free
1-800-294-1322 or (iii) X.X. Xxxxxx Securities Inc. collect at (000)
000-0000.
Any
disclaimers or other notices that may appear below are not applicable to this
communication and should be disregarded. Such disclaimers or other notices were
automatically generated as a result of this communication being sent via
Bloomberg or another email system.
