Exhibit 1.1
EXECUTION COPY
BB&T
Corporation
(a North Carolina
corporation)
Medium-Term Notes, Series A
(Senior)
Medium-Term Notes, Series B
(Subordinated)
DISTRIBUTION
AGREEMENT
April 27, 2009
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
BB&T Capital Markets, a division
of
Scott &
Stringfellow, LLC
909 E. Main Street, 8th Floor South
Richmond, Virginia 23219
Ladies and Gentlemen:
BB&T Corporation, a North
Carolina corporation (the “ Company ”), confirms
its agreement with you (you and each other person executing a
Distribution Agreement substantially similar to this Agreement
being hereinafter referred to as an “ Agent ”)
with respect to the issue and sale by the Company of Medium-Term
Notes, Series A (Senior) (the “ Senior Notes ”)
and Medium-Term Notes, Series B (Subordinated) (the “
Subordinated Notes ”) due nine (9) months or more
from date of issue (the “ Securities ”). The
Senior Notes are to be issued pursuant to an Indenture dated as of
May 24, 1996, as the same may be amended from time to time (as
so amended, the “ Senior Note Indenture ”),
between the Company and U.S. Bank National Association, as trustee
(the “ Senior Note Trustee ”) and an
Officers’ Certificate establishing the terms of the
Securities and any applicable Authentication Certificate
supplemental to the Officers’ Certificate. The Subordinated
Notes are to be issued pursuant to an Indenture dated as of
May 24, 1996, as the same may be amended from time to time (as
so amended, the “ Subordinated Note Indenture ”)
between the Company and U.S. Bank National Association, as trustee
(the “ Subordinated Note Trustee ”) and an
Officers’ Certificate establishing the terms of the
Securities and any applicable Authentication Certificate
supplemental to the Officers’ Certificate. The Senior Note
Indenture and the Subordinated Note Indenture are collectively
referred to herein as the “ Indentures .” It is
understood that the Company may from time to time authorize the
issuance of additional Securities and that such additional
Securities may be sold through or to the Agents pursuant to the
terms of this Agreement, as though the issuance of such Securities
were authorized as of the date hereof.
Subject to the terms and conditions
stated herein, the Company hereby (i) appoints you as an agent
of the Company for the purpose of soliciting purchases of the
Securities from the Company by others and (ii) agrees that
whenever the Company determines to sell Securities directly to you
as principal for resale to others, it will enter into a terms
agreement (which shall be substantially in the form of Exhibit
A hereto and which may take the form of an oral agreement
confirmed in writing or any exchange of any standard form of
written telecommunication between you and the Company), a
syndicated terms agreement (which shall be substantially in the
form of Exhibit B hereto) or other separate agreement to
which you and the Company shall otherwise agree, relating to such
sale in accordance with the provisions of Section 2(b) hereof
(any such terms agreement, syndicated terms agreement or other
separate agreement to which you and the Company shall otherwise
agree shall hereinafter be referred to as a “ Terms
Agreement ”).
SECTION 1. Representations and
Warranties .
(a) The Company represents and
warrants to you as of the date hereof, as of the Closing Time and
each Settlement Date hereinafter referred to, and as of the times
referred to in Sections 6(a) and 6(b) hereof (in each case the
“ Representation Date ”), as follows:
(i) An “automatic shelf
registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “ 1933 Act
”)) on Form S-3 in respect of the Securities (File
No. 333-152543) (A) has been prepared by the Company in
conformity with the requirements of the 1933 Act, and the rules and
regulations (the “ 1933 Act Regulations ”) of
the Securities and Exchange Commission (the “
Commission ”) thereunder, (B) has been filed with
the Commission under the 1933 Act not earlier than the date that is
three years prior to the Closing Time (as defined in Section 2
hereof) and (C) upon its filing with the Commission,
automatically became and is effective under the 1933 Act. Copies of
such registration statement and any amendment thereto (excluding
exhibits to such registration statement and all documents which
have been filed with the Commission pursuant to EDGAR (defined
below) and incorporated by reference in each prospectus contained
therein) have been delivered or made available by the Company to
the Agents; and no other document with respect to such registration
statement or any such document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission.
Such registration statement, at any
given time, including the amendments thereto to such time, the
exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at such time and the documents otherwise
deemed to be a part thereof or included therein by the rules and
regulations under the 1933 Act, is herein called the “
Registration Statement .” The Registration Statement
at the time it originally became effective is herein called the
“ Original Registration Statement .” Any
information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of and included in such registration statement
pursuant to Rule 430B(f) is referred to as the “ Rule 430B
Information .”
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No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or 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 Agents; no order
preventing or suspending the use of the Prospectus (as defined
below) or any Issuer Free Writing Prospectus (as defined below) has
been issued by the Commission; the Company meets the requirements
for use of Form S-3 and has not been notified by the Commission of
any objection to the use of the automatic shelf registration
statement on Form S-3.
The Company has been, and continues
to be, a “well-known seasoned issuer” (as defined in
Rule 405 of the 1933 Act Regulations) and has not been, and
continues not to be, an “ineligible issuer” (as defined
in Rule 405 of the 1933 Act Regulations), in each case at all times
relevant under the 1933 Act in connection with the offering of the
Securities.
For purposes of this Agreement, the
following terms have the specified meanings:
The term “ Applicable
Time ” means the time and date set forth in the Terms
Agreement relating to an issue of Securities or, when not otherwise
agreed to between the Company and the applicable Agents, the time
and date when an Agent first conveys to purchasers the pricing
terms of an issue of Securities set forth in the applicable Pricing
Supplement (or a Term Sheet (as defined in Section 3(d)), if
any, prepared prior to the Pricing Supplement), for such issue of
Securities.
The term “ Basic
Prospectus ” means the base prospectus relating to the
Securities included in the Registration Statement at the time it
became effective.
The term “ Prospectus
” means the prospectus relating to the Securities, including
the Basic Prospectus and the prospectus supplement relating to the
Securities heretofore filed with the Commission (the “
Prospectus Supplement ”) and any pricing supplement
related to any issue of Securities (the “ Pricing
Supplement ”), in the form furnished to the Agents for
use in connection with the offering of the Securities, including
the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act.
As used herein, the terms
“Registration Statement,” “Basic
Prospectus,” and “Prospectus” shall include in
each case the material, if any, incorporated by reference therein
as of its effective time, in the case of the Registration Statement
and the Basic Prospectus, and as of the date of such prospectus, in
the case of any Prospectus. Any reference to any amendment or
supplement to the Basic Prospectus or Prospectus shall be deemed to
refer to and include any document incorporated by reference after
the date of such Basic Prospectus or any Prospectus, as the case
may be. Any reference to any amendment to the Registration
Statement shall be deemed to include any document incorporated by
reference after the effective time of such Registration
Statement.
The term “ Issuer Free
Writing Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433 under the 1933 Act
(“ Rule 433 ”), prepared in connection with an
issue of Securities.
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The term “ Issuer General
Use Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by it being specified in a
schedule to the Terms Agreement (for offerings pursuant to
Section 2(b)), including, without limitation, any Term Sheet
(as defined in Section 3(d) hereof), or as otherwise
identified by the parties hereto.
The term “ Issuer Limited
Use Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
All references herein to the
Registration Statement or the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system (“ EDGAR
”).
(ii) The documents incorporated or
deemed to be incorporated by reference in the General Disclosure
Package (as defined below) and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the
Securities and Exchange Act of 1934 (the “ 1934 Act
”) and the rules and regulations thereunder (the “
1934 Act Regulations ”), and when read together and
with the other information in the Prospectus, (A) at the time
the Registration Statement became effective, (B) at the
earlier of the time the Prospectus was first used and the date and
time of the first contract of sale of the Securities and
(C) as of the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were or are made, not misleading; provided ,
however , that the foregoing shall not apply to any
statements or omissions made therein in reliance upon and in
conformity with information furnished in writing to the Company by
you expressly for use therein.
(iii) At the respective times the
Original Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to an Agent
pursuant to Rule 430B(f)(2) under the 1933 Act and at the Closing
Time, the Registration Statement complied and will comply in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the “ 1939 Act ”) and the rules and
regulations thereunder, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; neither the Prospectus nor any amendments
or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued, at the Closing Time and at each
Settlement Date (as defined below), included or will include an
untrue statement of a material fact or omitted or will omit to
state a material necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and the Prospectus complied when filed with the
Commission in all material respects with the 1933 Act Regulations
and the Prospectus delivered to the Agents for use in connection
with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T; and, with respect to any
issue of Securities, as of the
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Applicable Time for such issue of
Securities, neither (x) the Basic Prospectus, the Prospectus
Supplement, the applicable Pricing Supplement (if no Term Sheet has
been prepared for such issue of Securities) and the Issuer General
Use Free Writing Prospectus(es), all considered together
(collectively, the “ General Disclosure Package
”), nor (y) any individual Issuer Limited Use Free
Writing Prospectus, when considered together with the General
Disclosure Package, included 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; each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of any
such issue of Securities or until any earlier date that the Company
notified or notifies the Agents, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
General Disclosure Package or the Prospectus, including any
document incorporated by reference therein and any preliminary or
other prospectus deemed to be a part thereof that has not been
superseded or modified; provided , however , that the
representations and warranties in this Section 1(a)(iii) shall
not apply to statements in or omissions from the Registration
Statement, the General Disclosure Package, the Prospectus or any
Issuer Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use therein or to that part of the Registration
Statement constituting the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of any
trustee.
(iv) The accountants who audited and
reviewed the financial statements included or incorporated by
reference in the General Disclosure Package and the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) The financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, together with the related schedules and
notes, comply as to form in all material respects with the
requirements of the 1933 Act and present fairly 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 in the United States
applied on a consistent basis throughout the periods
involved.
(vi) Since the respective dates as
of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no
Material Adverse Effect (as defined below), (B) there has been
no material decrease in the capital stock or any material increase
in the long-term debt of the Company or any of its subsidiaries,
and (C) there have been no material transactions entered into
by the Company or any of its subsidiaries other than those in the
ordinary course of business. “ Material Adverse Effect
” shall mean a material adverse change in the condition,
financial or otherwise, or
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in the earnings, income, affairs or
business prospects of the Company and the subsidiaries of the
Company considered as one enterprise.
(vii) The Company (A) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of North Carolina, (B) is
duly registered as a bank holding company and is qualified as a
financial holding company under the Bank Holding Act of 1956, as
amended, and (C) has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement, the General Disclosure
Package and the Prospectus. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which its ownership or lease of properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing would not,
individually or in the aggregate, result in a Material Adverse
Effect.
(viii) Branch Banking and Trust
Company, the Company’s principal banking subsidiary (the
“ Principal Banking Subsidiary ”), has been duly
incorporated and is validly existing as a state-chartered
commercial bank in good standing under the laws of the State of
North Carolina and has corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Registration Statement, the General Disclosure Package and the
Prospectus; all of the issued and outstanding capital stock of the
Principal Banking Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and 100% of the
capital stock of the Principal Banking Subsidiary is owned by the
Company, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(ix) The authorized, issued and
outstanding capital stock of the Company is as set forth in the
General Disclosure Package and the Prospectus as of the date or
dates specified therein, and the shares of issued and outstanding
capital stock set forth therein have been duly authorized and
validly issued and are fully paid and non-assessable.
(x) Neither the Company nor any of
its subsidiaries is in violation of its organizational documents or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which it is a party or by which it or any of them
or their properties or assets may be bound, except for such
violations or defaults that would not result in a Material Adverse
Effect; and the execution and delivery of this Agreement, the
Securities, the Indentures and each applicable Terms Agreement, if
any, and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or
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 contract, indenture,
mortgage, loan 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 of its subsidiaries is
subject, except
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where such breach or default would
not result in a Material Adverse Effect on the Company, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree; and no
consent, approval, authorization, order or decree of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the 1939 Act or the
1933 Act Regulations, all of which have been obtained, or such as
may be required under state securities or “blue sky”
laws in connection with the purchase and distribution of the
Securities by the Agents.
(xi) The Company is not, and after
giving effect to the issuance of the offered Securities and the
application of the proceeds thereof as described in the General
Disclosure Package and the Prospectus, will not be an
“investment company” that is required to be registered
under the Investment Company Act of 1940, as amended (the “
1940 Act ”).
(xii) The Company and its
subsidiaries own or possess or have obtained all material
governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to lease or own, as the case may be,
and to operate their respective properties and to carry on their
respective businesses as presently conducted, except where the
failure to own, possess or maintain such governmental licenses,
permits, consents, orders, approvals and other authorizations would
not, individually or in the aggregate, result in a Material Adverse
Effect on the Company.
(xiii) The Company and its
subsidiaries own or possess all material trademarks, service marks
and trade names necessary to conduct the business now operated by
them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or
trade names which, if the subject of an unfavorable decision,
ruling or finding, would, individually or in the aggregate, result
in a Material Adverse Effect on the Company.
(xiv) There is no action, suit,
proceeding, inquiry or investigation before or 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 of its subsidiaries, which may reasonably be
expected to result in a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the
properties or assets thereof or which may reasonably be expected to
materially and adversely affect the consummation of this Agreement
and the consummation of the transactions contemplated hereby; and
there are no material contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xv) No material labor dispute with
the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent.
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(xvi) The Securities have been duly
authorized for issuance and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to the provisions
of this Agreement and of the Indentures against payment of the
consideration therefor specified herein, the Securities will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally
or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by
requirements that a claim with respect to any Securities payable in
a foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. The
Securities will be substantially in a form previously certified to
the Agents and contemplated by the Indentures; and each holder of
Securities will be entitled to the benefits of the Indentures. The
Securities and the Indentures conform in all material respects to
all statements relating thereto contained in the Registration
Statement, the General Disclosure Package and the
Prospectus.
(xvii) Each of this Agreement and
any applicable Terms Agreement has been duly authorized, executed
and delivered by the Company.
(xviii) The Indentures have been
duly qualified under the 1939 Act and have been duly authorized,
executed and delivered by the Company and are the valid and binding
agreements of the Company, enforceable in accordance with their
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xix) To the best knowledge of the
Company, the operations of the Company are currently in material
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws ”) and any instances of
non-compliance have been resolved with the applicable governmental
agency and no formal action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, is
threatened.
(xx) Neither the Company nor any of
its subsidiaries, nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
(A) used any corporate funds for any unlawful contribution,
gift, entertainment or other
8
unlawful expense relating to
political activity; (B) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee
from corporate funds; (C) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977; or
(D) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment, except where any of the
activities set forth in clauses (A), (B), (C) and
(D) would not have a Material Adverse Effect on the
Company.
(xxi) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a–15(f)) that complies with the
requirements of the 1934 Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The
Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting.
(xxii) Since the date of the latest
audited financial statements included or incorporated by reference
in the General Disclosure Package and the Prospectus, there has
been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(xxiii) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a–15(e)) that comply with the requirements of the 1934 Act;
such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its
subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are
effective.
(xxiv) None of the Company, any of
its subsidiaries or, 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 U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Securities hereunder, 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.
(b) Any certificate signed by any
officer of the Company and delivered to you or to your counsel in
connection with an offering of Securities, or the sale of
Securities to you pursuant to any applicable Terms Agreement,
contemplated by this Agreement shall be deemed a representation and
warranty by the Company to you as to the matters covered thereby on
the date of such certificate and at each Representation Date
referred to in Section 1(a) hereof subsequent thereto relating
to such offering or sale.
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SECTION 2. Solicitations as
Agent; Purchases as Principal .
(a) Solicitations as Agent .
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set
forth, you agree to use your reasonable efforts, as agent for the
Company, to solicit offers to purchase the Securities upon the
terms and conditions set forth in the General Disclosure Package
and the Prospectus. You are not authorized to appoint sub-agents
with respect to Securities sold through you as agent. All
securities sold through you as agent will be sold at 100% of their
principal amount, unless otherwise agreed upon by you and the
Company.
The Company reserves the right, in
its sole discretion, to suspend solicitation of purchases of the
Securities commencing at any time for any period of time or
permanently. Upon receipt of instructions from the Company, you
will forthwith suspend solicitation of purchases from the Company
until advised by the Company that such solicitation may be
resumed.
The Company agrees to pay you a
commission equal to a specified percentage, as agreed between the
Company and you, of the principal amount (or, in the case of
original issue discount Securities, the principal amount payable at
the stated maturity thereof) of each Security sold by the Company,
as a result of a solicitation made or offer to purchase received by
you, as agent for the Company.
You, in your capacity as agent for
the Company, are authorized to solicit orders for the Securities
with terms specified to you from time to time by the Company. You
shall communicate to the Company, orally or in writing, each offer
to purchase Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall
have the sole right to accept offers to purchase the Securities and
may reject any such offer in whole or in part. You shall have the
right to reject any offer to purchase the Securities received by
you in whole or in part, and any such rejection shall not be deemed
a breach of your agreement contained herein.
(b) Purchases as Principal .
Each sale of Securities to you as principal shall be made in
accordance with the terms of this Agreement and (unless the Company
and you shall otherwise agree) a Terms Agreement which will provide
for the sale of such Securities to, and the purchase and reoffering
thereof by, you. Your commitment to purchase Securities pursuant to
any Terms Agreement or otherwise shall be deemed to have been made
on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth; provided , however , that for
purposes of any Terms Agreement all references in this Agreement to
“you” or “the Agents” shall be deemed to
refer only to the Agent or Agents that are a party to such Terms
Agreement. Each Terms Agreement shall specify the principal amount
of Securities to be purchased by you pursuant thereto, the price to
be paid to the Company for such Securities, the initial public
offering price, if any, at which the Securities are proposed to be
reoffered, and the time of delivery of and payment for such
Securities and such other provisions as may be mutually agreed
upon. Such Terms Agreement shall also specify any requirements for
officers’ certificates, opinions of counsel and letters from
PricewaterhouseCoopers LLP pursuant to Sections 5 and 6 hereof.
Each purchase of the Securities shall be (i) at a discount
from the principal amount of such Securities as agreed
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between the Company and such Agent or
(ii) as otherwise agreed between the Company and such
Agent.
For each sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement,
the procedural details relating to the issue and delivery of such
Securities and payment therefor shall be as set forth in the
Procedures (as defined below) unless the Company and the relevant
Agent(s) shall otherwise agree.
Subject to the provisions of any
applicable Terms Agreement, Securities purchased by an Agent as
principal may be resold by such Agent to one or more investors or
other purchasers at fixed offering prices or at varying prices
related to prevailing market prices at the time of such resale, as
determined by such Agent. In addition, such Agent may offer the
Securities it has purchased as principal to other
dealers.
If the Company and two or more
Agents enter into an agreement pursuant to which such Agents agree
to purchase Securities from the Company as principal and one or
more of such Agents shall fail at the Settlement Date to purchase
the Securities which it or they are obligated to purchase (the
“ Defaulted Securities ”), then the
nondefaulting Agents shall have the right, within twenty-four
(24) hours thereafter, to make arrangements for one of them or
one or more other Agents or 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; provided
, however , that if such arrangements shall not have been
completed within such twenty-four (24) hour period,
then:
(i) if the aggregate principal
amount of Defaulted Securities does not exceed 10% of the aggregate
principal amount of Securities to be so purchased by all of such
Agents on the Settlement Date, the nondefaulting Agents shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial purchase
obligations bear to the purchase obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal
amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of Securities to be so purchased by all of such
Agents on the Settlement Date, such agreement shall terminate
without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this
paragraph shall relieve any defaulting Agent from liability in
respect of its default. In the event of any such default which does
not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the rights to
postpone the Settlement Date for a period not exceeding seven
(7) days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents
or arrangements.
(c) Procedures; Settlement .
Administrative procedures with respect to the sale of Securities
shall be set forth in an exhibit to the Officers’ Certificate
and the Company Order to be delivered by the Company as of the
Settlement Date (as defined below), as agreed to between the
Company and the Agents (the “ Procedures ”). You
and the Company agree to
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perform on and after the Closing Time the
respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures. The time of
delivery of and payment for Securities, whether pursuant to a Terms
Agreement or other agreement to purchase Securities as principal or
pursuant to another purchaser’s offer to purchase Securities
solicited by you in your capacity as agent for the Company, is
hereinafter referred to as the “ Settlement Date
” for such Securities.
(d) Solicitations as Agent .
You agree, with respect to any Security denominated in a currency
other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to offer, sell
or deliver such Security in, or to residents of, the country
issuing such currency (or, if such Security is denominated in a
composite currency, in any country issuing a currency comprising a
portion of such composite currency), except as permitted by
applicable law.
(e) Delivery . The documents
initially required to be delivered by Section 5 hereof shall
be delivered at the offices of Shearman & Sterling LLP,
599 Lexington Avenue, New York, New York 10022-6069 on the date
hereof, or at such other time as you and the Company may agree upon
in writing (the “ Closing Time ”).
SECTION 3. Covenants of the
Company . The Company covenants with you as follows:
(a) If at any time when the
Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of the counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any 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 reasonable opinion of either
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, or if
at any time following issuance of an Issuer Free Writing
Prospectus, any event shall occur or condition exist as a result of
which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration
Statement or the Prospectus or included or would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time,
not misleading, prompt notice thereof shall be given, and confirmed
in writing, to you to cease the solicitation of offers to purchase
the Securities in your capacity as agent for the Company and to
cease sales of any Securities you may then own as principal
pursuant to a Terms Agreement or otherwise, and, if requested by
you, the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement, omission or conflict or to make the
Registration Statement, the Prospectus or the Issuer Free Writing
Prospectus comply with such requirements.
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(b) On the date on which there shall
be released to the general public interim financial statement
information related to the Company with respect to each of the
first three (3) quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year,
the Company shall post to its website or furnish such information
to you, confirmed in writing upon request, and shall cause the
Prospectus to be amended or supplemented to include or incorporate
by reference summary financial information with respect to the
results of operations of the Company for the period between the end
of the preceding fiscal year and the end of such quarter or for
such fiscal year, as the case may be, and corresponding information
for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for
an understanding of such amounts or as shall be required by the
1933 Act or the 1933 Act Regulations; provided ,
however , that if on the date of such release you shall have
suspended solicitation of purchases of the Securities in your
capacity as agent for the Company pursuant to a request from the
Company, and shall not then hold any Securities as principal, the
Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that
solicitation of purchases of the Securities should be resumed or
shall subsequently enter into a new Terms Agreement with
you.
(c) On the date on which there shall
be released to the general public financial information included in
or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, pursuant to the 1934
Act, the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation
by reference, of the independent accountants with respect thereto,
as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as
shall be required by the 1933 Act or the 1933 Act Regulations;
provided , however , that if on the date of such
release you shall have suspended solicitation of purchases of the
Securities in your capacity as agent for the Company pursuant to a
request from the Company, and shall not then hold any Securities as
principal, the Company shall not be obligated so to amend or
supplement the Prospectus until such time as the Company shall
determine that solicitation of purchases of the Securities should
be resumed or shall subsequently enter into a new Terms Agreement
with you.
(d) The Company will:
(i) prepare the Pricing Supplement in relation to the
applicable Securities in a form approved by the Agents and file
such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act
in the manner and within the time period required by Rule 424(b);
(ii) if agreed between the Company and the Agents, prepare a
final term sheet (a “ Term Sheet ”), containing
solely a description of the offered Securities, in a form approved
by you and to file such Term Sheet pursuant to Rule 433(d) within
the time period specified therein; (iii) file promptly all
material required to be filed by the Company with the Commission
pursuant to Rule 433(d); and (iv) make no further amendment or
any supplement to the Registration Statement or Prospectus after
the date referred to in Section 6(a) hereof relating to such
offered Securities and prior to the applicable Settlement Date for
such offered Securities which is not consented to by the Agents
after reasonable notice thereof (such consent not to be
unreasonably withheld).
(e) The Company represents and
agrees that, unless it obtains the prior consent of the Agents, and
each Agent represents and agrees that, unless it obtains the
prior
13
consent of the Company and the other Agents, it
has not made and will not make any offer relating to any issue of
Securities that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405 of the 1933 Act
Regulations, required to be filed by the Company with the
Commission or retained by the Company under Rule 433, provided that
consent shall have been deemed to have been given with respect to a
free writing prospectus containing the information contained in the
Term Sheet prepared and filed pursuant to Section 3(d) hereto.
Any such free writing prospectus consented to by the Company and
the Agents is hereinafter referred to as a “ Permitted
Free Writing Prospectus .” The Company represents that it
has treated or agrees that it will treat each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and has
complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and
record keeping. Notwithstanding anything to the contrary contained
herein, the Company and the Agents consent to the use by the Agents
of one or more term sheets relating to the Securities containing
either the information describing the preliminary terms of the
Securities or their offering or the information included in the
applicable Pricing Supplement (or a Term Sheet (as defined in
Section 3(d)) and other customary information that is not
“issuer information,” as defined in Rule 433, provided
that such term sheet shall not be treated as an Issuer Free Writing
Prospectus.
(f) The Company will make generally
available to its security holders (as defined in Rule 158), as soon
as practicable, but not later than forty-five (45) days after
the close of each of the first three (3) fiscal quarters of
each fiscal year and ninety (90) days after the close of each
fiscal year, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve
(12) month period beginning not later than the first day of
the fiscal quarter next following the effective date of the
Registration Statement, provided that the Company may make such
earnings statements generally available by filing quarterly and
annual reports with the Commission as may be required by the
Exchange Act.
(g) The Company will give you notice
of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other
than an amendment to the Registration Statement or prospectus
supplement not relating to the Securities or an amendment or
supplement providing solely for the interests rates, redemption
provisions, maturities or other terms of the Securities or other
information contemplated by the Prospectus or required by the 1933
Act or the 1933 Act Regulations to be filed in a Pricing Supplement
or an amendment or supplement effected by the filing of a document
with the Commission pursuant to the 1934 Act). The Company will
furnish you with copies of any such amendment or supplement or
other documents proposed to be filed a reasonable time in advance
of filing, will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably
object and, if requested, will furnish you with copies of documents
filed pursuant to the 1934 Act promptly upon request;
provided , howe
