QUESTAR PIPELINE COMPANY
(a Utah corporation)
$50,000,000
5.83% Notes due 2018
PURCHASE AGREEMENT
Dated: September 8, 2009
TABLE OF CONTENTS
Page
SECTION 1.
Representations and Warranties of the
Company
2
SECTION 2.
Sale and Delivery to Underwriters;
Closing.
8
SECTION 3.
Covenants of the Company
9
SECTION 4.
Payment of Expenses.
12
SECTION 5.
Conditions of Underwriters’
Obligations
13
SECTION 6.
Indemnification.
19
SECTION 7.
Contribution
22
SECTION 8.
Representations, Warranties and
Agreements to Survive Delivery
23
SECTION 9.
Termination of Agreement.
23
SECTION 10.
Default by One or More of the
Underwriters
24
SECTION 11.
Notices
24
SECTION 12.
Parties
24
SECTION 13.
No Advisory or Fiduciary
Responsibility
25
SECTION 14.
GOVERNING LAW AND TIME
25
SECTION 15.
Effect of Headings
25
SCHEDULES
Schedule A
-
List of Underwriters
Sch. A-1
Schedule B
-
Final Term Sheet
Sch. B-1
Schedule C
-
Issuer Free Writing
Prospectuses
Sch. C-1
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QUESTAR PIPELINE COMPANY
(a Utah corporation)
$50,000,000
5.83% Notes due 2018
PURCHASE AGREEMENT
September 8, 2009
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
SunTrust Robinson Humphrey, Inc.
303 Peachtree Street, 24 th Floor
Atlanta, Georgia 30308
as Representatives of the
several Underwriters
Ladies and Gentlemen:
Questar Pipeline Company, a Utah
corporation (the “Company”), confirms its agreement
with Barclays Capital Inc. and SunTrust Robinson Humphrey, Inc. and
each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Barclays Capital Inc. and SunTrust
Robinson Humphrey, Inc. are acting as representatives (in such
capacity, the “Representatives”), with respect to the
issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective principal
amounts set forth in Schedule A of $50,000,000 aggregate principal
amount of the Company’s 5.83% Notes due 2018 (the
“Securities”). The Securities are to be issued
pursuant to an indenture dated as of August 17, 1998 (the
“Indenture”) between the Company and Wells Fargo Bank,
NA, as successor trustee (the “Trustee”), and will
constitute a further issuance of, and will be consolidated with,
the $200,000,000 aggregate principal amount of the Company’s
5.83% Notes due 2018 issued by the Company on January 15, 2008 (the
“Original Notes”) and form a single series with the
Original Notes. The term “Indenture,” as used
herein, includes the Officers’ Certificate (as defined in the
Indenture) establishing the form and terms of the Securities
pursuant to Sections 201 and 301 of the Indenture.
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The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended, and the rules
and regulations promulgated thereunder (collectively, the
“Trust Indenture Act”).
SECTION 1.
Representations and Warranties of the Company .
The Company represents and warrants to each Underwriter as of
the date hereof, as of the Closing Time referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(a)
The Company has prepared and filed with
the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-161469), which contains a base prospectus (the
“Base Prospectus”), to be used in connection with the
public offering and sale of the Securities. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, at each time of effectiveness under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities
Act”), including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430B under
the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), is called the
“Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the
Securities Act is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of filing of
the Rule 462(b) Registration Statement the term “Registration
Statement” shall include the Rule 462(b) Registration
Statement. Any preliminary prospectus supplement to the Base
Prospectus that describes the Securities and the offering thereof
and is used prior to filing of the Prospectus is called, together
with the Base Prospectus, a “preliminary prospectus.”
The term “Prospectus” shall mean the final
prospectus supplement relating to the Securities, together with the
Base Prospectus, that is first filed pursuant to Rule 424(b) after
the date and time that this Agreement is executed and delivered by
the parties hereto. Any reference herein to the Registration
Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act; any reference to any amendment or supplement to any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
preliminary prospectus or Prospectus, as the case may be, under the
Exchange Act, and incorporated by reference in such preliminary
prospectus or Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement. All references in
this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary prospectus, the Prospectus,
or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”).
(b)
Compliance with Registration
Requirements . The
Company meets the requirements for use of Form S-3 under the
Securities Act. Each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective under the
Securities Act and
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no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective and at the date
hereof, the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, 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 and at
the Closing Time, included or will include an untrue statement of a
material fact or omitted or will 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.
The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto or Prospectus or
any amendment or supplement thereto made in reliance upon and in
conformity with information furnished to the Company in writing by
or on behalf of any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus, it
being understood and agreed that the only such information
furnished by the Representatives consists of the information
described as such in Section 6 hereof.
Each preliminary prospectus and the
prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act Regulations
and each preliminary prospectus and the Prospectus delivered to the
Underwriters 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.
(c)
Incorporated Documents
. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Disclosure Package (as defined below) and the
Prospectus, at the times they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, and, when read together with
the other information in the Disclosure Package and the Prospectus,
at the times the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, 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 light of the circumstances under
which they were made, not misleading.
(d)
Disclosure Package
. The term “Disclosure
Package” shall mean (i) the Base Prospectus, including any
preliminary prospectus supplement, as amended or supplemented, (ii)
the issuer free writing prospectuses as defined in Rule 433 of the
Securities Act (each, an “Issuer Free Writing
Prospectus”), if any, identified in Schedule C hereto,
(iii) any other free writing
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prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the
Disclosure Package and (iv) the Final Term Sheet (as defined
herein), which also shall be identified in Schedule C hereto.
As of 2:30 p.m. (Eastern time) on the date of this Agreement
(the “Applicable Time”), the Disclosure Package did 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 or on behalf of any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by the
Representatives consists of the information described as such in
Section 6 hereof.
(e)
Company Not Ineligible
Issuer . (i) At the
earliest time after the filing of the Registration Statement
relating to the Securities that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Securities Act and (ii) as of the date of
the execution and delivery of this Agreement (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 of the Securities Act) without taking account of any
determination by the Commission pursuant to Rule 405 of the
Securities Act that it is not necessary that the Company be
considered an Ineligible Issuer.
(f)
Issuer Free Writing
Prospectuses . Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the offering or until
any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement, any preliminary prospectus or the Prospectus, including
in each case, any document incorporated by reference therein that
has not been superseded or modified. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, any
preliminary prospectus or the Prospectus, the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the
information described as such in Section 6 hereof.
(g)
Distribution of Offering Material By
the Company . The
Company has not distributed and will not distribute, prior to the
later of the Closing Time and the completion of the
Underwriters’ distribution of the Securities, any offering
material in connection with the offering and sale of the Securities
other than a preliminary prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the
Representatives and included in Schedule C hereto or the
Registration Statement.
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(h)
Accountants . The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Disclosure Package and the Prospectus are, to the
best knowledge of the Company, a registered public accounting firm
independent of the Company as required by the Securities Act and
the rules and regulations of the Public Company Accounting
Oversight Board.
(i)
Financial Statements
. The financial statements included
in the Registration Statement, the Disclosure Package and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except as
otherwise stated in such document, such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein. The selected
financial data included in each of the preliminary prospectus and
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in such document. The Company’s
ratio of earnings to fixed charges set forth in each of the
preliminary prospectus and the Prospectus have been calculated in
compliance with Item 503(d) of Regulation S-K under the Securities
Act.
(j)
Material Changes or Material
Transactions . Since the
respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus,
except as otherwise stated therein, (a) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (b) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (c) except for the regular
dividends, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(k)
Due Incorporation and
Qualification . The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Utah
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a “Material Adverse
Effect”).
(l)
Subsidiaries . Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether
by reason of the ownership of property or the
5
conduct of business, except where the
failure to so qualify or be in good standing would not have a
Material Adverse Effect; and all of the issued and outstanding
capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(m)
Capital Stock . The shares of issued and outstanding common
stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable.
(n)
Authorization of Agreement.
This Agreement has been duly
authorized, executed and delivered by the Company.
(o)
Authorization and Validity of the
Indenture and the Securities .
The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in
the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and general equitable principles, and will
be entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized,
executed and delivered by the Company and the Indenture has been
duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and general equitable principles;
and the Securities and the Indenture conform to the respective
descriptions thereof in the Disclosure Package and the
Prospectus.
(p)
No Defaults; Regulatory
Approvals . Neither the
Company nor any of its subsidiaries is in violation of its charter
or bylaws 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
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, which violations or defaults in the aggregate would
have a Material Adverse Effect; and the execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein, in the Disclosure Package and in the
Prospectus have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or 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, except as expressly contemplated in the
Indenture or except as would not have a Material Adverse Effect,
pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other 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, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company
or, except as would not have a Material Adverse Effect, any
applicable law, administrative regulation or administrative or
court decree.
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(q)
Legal Proceedings;
Contracts . There is no
action, suit or proceeding before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against the Company or
any of its subsidiaries, which is required to be disclosed in the
Registration Statement, the Disclosure Package or the Prospectus
(other than as disclosed therein) or which would reasonably be
expected to result in a Material Adverse Effect, or which would
materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated by this Agreement
or the performance by the Company of its obligation hereunder; all
pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or which any of their respective
property is subject which are not described in the Registration
Statement, the Disclosure Package and the Prospectus, including
ordinary routine litigation incidental to the business, considered
in the aggregate, would not reasonably be expected to cause a
Material Adverse Effect; and there are no 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 Securities
Act which have not been so filed.
(r)
No Governmental
Authorization . No
authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the sale of the
Securities hereunder, except such as may be required under the
Securities Act and state securities laws and except as have been
obtained.
(s)
Possession of Permits
. The Company and its subsidiaries
possess such valid franchises, certificates of convenience and
necessity, easements, rights-of-way, operating rights, licenses,
permits, consents, authorizations and orders of governmental
political subdivisions or regulatory authorities as are necessary
to conduct the business now operated by them, except those the
failure of which to possess would not have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification thereof which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding would have a
Material Adverse Effect.
(t)
Investment Company Act
. Neither the Company nor any of
its subsidiaries is regulated or required to be registered as an
“investment company” under the Investment Company Act
of 1940, as amended (the “Investment Company
Act”).
(u)
Ratings . The Securities are rated A3 by Moody’s
Investors Service, Inc. and BBB+ by Standard & Poor’s
Ratings Services, or such other rating as to which the Company
shall have most recently notified the Underwriters pursuant to
Section 5(i) hereof.
(v)
Internal Controls and
Procedures . The Company
maintains on a consolidated basis (i) effective internal control
over financial reporting as defined in Rule 13a-15(f) and Rule
15d-15(f) under the Exchange Act, and (ii) a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (D) the recorded
7
accountability for assets is compared
with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w)
No Material Weakness in Internal
Controls . Except as
disclosed in the Disclosure Package and the Prospectus, or in any
document incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been (i)
no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) 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.
(x)
Sarbanes-Oxley Compliance
. There is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402 related to
loans and Sections 302 and 906 related to
certifications.
(y)
Additional Certifications
. Any certificate signed by any
director or officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Securities . On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at a price of
102.186% of the principal amount thereof, plus accrued interest
from June 1, 2009 to the Closing Time, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Payment . Payment of the purchase price for, and
delivery of certificates for, the Securities shall be made at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times
Square, New York, NY 10036, or at such other place as shall be
agreed upon by the Representatives and the Company, at 10:00 A.M.
(New York City time) on the third business day after the date
hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being
herein called “Closing Time”).
Payment shall be made to the Company by
wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Securities which it has agreed to
purchase. Barclays Capital Inc., individually and not as a
representative of the
8
Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been
received by Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c)
Denominations; Registration
. Certificates for the Securities
shall be in minimum denominations of $2,000 and integral multiples
of $1,000 and registered in such names as the Representatives may
request in writing at least one full business day before Closing
Time. The Securities will be made available for examination
and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (New York City time) on the business day
prior to Closing Time.
SECTION 3.
Covenants of the Company . The Company
covenants with each Underwriter as follows:
(a)
Compliance with Securities Regulations
and Commission Requests .
The Company, subject to Section 3(b) hereof, will comply with
the requirements of Rule 430B, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus or any Issuer Free Writing Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission
concerning the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make
every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment .
(b)
Representatives’ Review of
Proposed Amendments and Supplements . During the period beginning on the
Applicable Time and ending on the later of the Closing Time or such
date, as in the opinion of counsel for the Underwriters, the
Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer, including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (the “Prospectus Delivery Period”), prior to
amending or supplementing the Registration Statement, the
Disclosure Package or the Prospectus (including any amendment or
supplement through incorporation by reference of any report filed
under the Exchange Act), the Company shall furnish to the
Representatives for review a copy of each such proposed amendment
or supplement, and the Company shall not file or use any such
proposed amendment or supplement to which the Representatives
reasonably object.
9
(c)
Amendments and Supplements to the
Registration Statement, Prospectus and Other Securities Act
Matters . The Company
will comply with the Securities Act, the Exchange Act and the Trust
Indenture Act so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the
Disclosure Package and the Prospectus. If, during the
Prospectus Delivery Period, any event or development shall occur or
condition exist as a result of which the Disclosure Package or the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in the light of
the circumstances under which they were made or then prevailing, as
the case may be, not misleading, or if it shall be necessary to
amend or supplement the Disclosure Package or the Prospectus, or to
file under the Exchange Act any document incorporated by reference
in the Disclosure Package or the Prospectus, in order to make the
statements therein, in the light of the circumstances under which
they were made or then prevailing, as the case may be, not
misleading, or if in the opinion of the Representatives it is
otherwise necessary to amend or supplement the Registration
Statement, the Disclosure Package or the Prospectus, or to file
under the Exchange Act any document incorporated by reference in
the Disclosure Package or the Prospectus, or to file a new
registration statement containing the Prospectus, in order to
comply with law, including in connection with the delivery of the
Prospectus, the Company agrees to (i) notify the Representatives of
any such event or condition and (ii) promptly prepare (subject to
Section 3(b) and 3(e) hereof), file with the Commission (and use
its best efforts to have any amendment to the Registration
Statement or any new registration statement to be declared
effective) and furnish at its own expense to the Underwriters and
to dealers, amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus, or any new
registration statement, necessary in order to make the statements
in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances then prevailing or
under which they were made, as the case may be, not misleading or
so that the Registration Statement, the Disclosure Package or the
Prospectus, as amended or supplemented, will comply with
law.
(d)
Final Term Sheet
. The Company will prepare a final
term sheet containing only a description of the Securities, in a
form approved by the Representatives and contained in Schedule B
hereto, and will file such term sheet pursuant to Rule 433(d) under
the Securities Act within the time required by such rule (such term
sheet, the “Final Term Sheet”).
(e)
Permitted Free Writing
Prospectuses . The
Company represents that it has not made, and agrees that, unless it
obtains the prior written consent of the Representatives (which
shall not be unreasonably withheld), it 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 of the Securities
Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives
hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses i
