EXHIBIT 1.1
SUPERVALU INC.
(a Delaware corporation)
7.5% Senior Notes due
2014
PURCHASE AGREEMENT
Dated: October 24,
2006
SUPERVALU INC.
(a Delaware corporation)
$500,000,000
7.5% Senior Notes due 2014
PURCHASE AGREEMENT
October 24, 2006
MERRILL LYNCH &
CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Banc of America Securities LLC
Credit Suisse Securities (USA) LLC
c/o Merrill Lynch, Pierce,
Fenner & Smith Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
SUPERVALU INC., a Delaware
corporation (the “Company”), confirms its agreement
with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated (“Merrill Lynch”),
Banc of America Securities LLC (“Banc of America”) and
Credit Suisse Securities (USA) LLC (“Credit Suisse”)
(each, a “Representative” and together, the
“Representatives”), as representatives of the several
underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof) with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of
the respective principal amounts set forth in said Schedule A of
$500,000,000 aggregate principal amount of the Company’s 7.5%
Senior Notes due 2014 (the “Securities”). The
Securities are to be issued pursuant to an indenture dated as of
July 1, 1987 (the “Indenture”) between the Company
and Deutsche Bank Trust Company, formerly known as Bankers Trust
Company, as trustee (the “Trustee”). Certain terms of
the Securities will be established pursuant to a Board Resolution
(as defined in the Indenture) adopted by the Company pursuant to
Section 301 of the Indenture and set forth in an
Officer’s Certificate (as defined in the
Indenture).
The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement on Form S-3 (No.
333-138143), including the related preliminary prospectus, which
registration statement became effective upon filing under Rule
462(e) of the rules and regulations of the Commission (the
“1933 Act Regulations”) under the Securities Act of
1933, as amended (the “1933 Act”). Such registration
statement covers the registration of the Securities under the 1933
Act. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the
provisions of Rule 430B (“Rule 430B”) of the 1933 Act
Regulations and paragraph (b) of Rule 424 (“Rule
424(b)”) of the 1933 Act Regulations. 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 is referred to as “Rule 430B
Information.” Each prospectus used in connection with the
offering of the Securities that omitted Rule 430B Information is
herein called a “preliminary prospectus.” 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 1933 Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form
first furnished to the Underwriters 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 at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, 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”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934
Act”) which is incorporated by reference in or otherwise
deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Company . The Company represents and warrants
to each Underwriter as of the date hereof, the Applicable Time
referred to in Section 1(a)(i) hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Status as a Well-Known
Seasoned Issuer . (A) At the time of filing the Original
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the
1933 Act Regulations) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the 1933 Act Regulations
and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 of
the 1933 Act Regulations (“Rule 405”), including not
having been and not being an “ineligible issuer” as
defined in Rule 405. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic shelf
registration statement.” The Company has not received from
the Commission any notice pursuant to Rule 401(g)(2) of the 1933
Act Regulations objecting to the use of the automatic shelf
registration statement form.
2
At the time of filing the Original
Registration Statement, at the earliest time thereafter that the
Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Securities and at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined
in Rule 405.
(ii) Registration Statement,
Prospectus and Disclosure at Time of Sale . The Original
Registration Statement became effective upon filing under Rule
462(e) of the 1933 Act Regulations (“Rule 462(e)”) on
October 23, 2006. No stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with.
Any offer that is a written
communication relating to the Securities made prior to the filing
of the Original Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) of the 1933 Act Regulations) has been filed with the
Commission in accordance with the exemption provided by Rule 163 of
the 1933 Act Regulations (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the time the Original
Registration Statement became effective, at each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2)
of the 1933 Act Regulations 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 (the “1939
Act”) and the rules and regulations of the Commission under
the 1939 Act (the “1939 Act Regulations”), 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 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.
Each preliminary prospectus
(including the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto) complied
when so filed in all material respects with the 1933 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.
As of the Applicable Time, neither
(x) the Issuer General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time (as
defined below), the Statutory Prospectus (as defined below) and the
information included on Schedule B hereto, 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.
3
As of the time of the filing of the
Final Term Sheet, the General Disclosure Package, when considered
together with the Final Term Sheet (as defined in
Section 3(b)), will not include 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.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
6:12 pm (Eastern time) on October 24, 2006 or such other time
as agreed by the Company and the Representatives.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors,
as evidenced by its being specified in Schedule B
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing
Prospectus.
“Statutory Prospectus”
as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any preliminary or other prospectus deemed to be a part
thereof.
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 the Securities or until
any earlier date that the issuer notified or notifies the
Representatives as described in Section 3(e), did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement 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.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein.
(iii) Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the “1934 Act Regulations”), and, when read
together with the other information in the Prospectus, (a) at
the time the Original Registration Statement became effective,
(b) at the earlier of time the
4
Prospectus was first used and the
date and time of the first contract of sale of Securities in this
offering and (c) 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 not misleading.
(iv) Independent Accountants
. KPMG LLP, who certified the financial statements and supporting
schedules of the Company included in the Registration Statement,
are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the 1933 Act and the rules
and regulations thereunder (the “1933 Act
Regulations”). Deloitte & Touche LLP, who certified
the financial statements and supporting schedules of
Albertson’s, Inc. (“Albertsons”) included in the
Registration Statement, were independent public accountants with
respect to Albertsons and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations.
(v) Financial Statements .
The financial statements included in the Registration Statement,
the General Disclosure Package and the Prospectus, together with
the related schedules and notes, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries and Albertsons and its consolidated subsidiaries, as
applicable, at the dates indicated and the statement of earnings,
stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries and Albertsons and its consolidated
subsidiaries, as applicable, for the periods specified in
conformity with United States generally accepted accounting
principles (“GAAP”); said financial statements have
been prepared in conformity with GAAP applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
present fairly in accordance with GAAP the information required to
be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly, in
conformity with GAAP, the information shown therein and have been
compiled on a basis consistent in all material respects with that
of the audited financial statements included in the Registration
Statement.
The pro forma financial statements
of the Company and its subsidiaries and the related notes thereto
included in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly, in conformity with GAAP,
the information shown therein, have been prepared in accordance
with the Commission’s rules and guidelines with respect to
pro forma financial statements and have been properly compiled on
the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and
circumstances referred to therein.
(vi) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement, the General
Disclosure Package or the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change or, to
the knowledge of the Company, any development involving a
prospective material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a “Material
Adverse Effect”) and (B) except for quarterly dividends
on the common stock, par value $1.00 per share, of the Company (the
“Common Stock”) and the 4.50% preferred stock of the
Company, in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vii) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, and
5
has corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Indenture and the Securities;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(viii) Good Standing of
Subsidiaries . Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a “Significant Subsidiary” and collectively, the
“Significant Subsidiaries”) has been duly organized 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 Prospectus and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for such security interests, mortgages, pledges, liens,
encumbrances or claims arising under the credit agreement, dated
June 1, 2006, among the Company and the lenders named therein,
and except in each case where the Company purports to own less than
all of such stock or where the breach of this representation would
not result in a Material Adverse Effect; none of the outstanding
shares of capital stock of the Company’s Significant
Subsidiaries was issued in violation of preemptive or similar
rights of any securityholder of such Significant
Subsidiaries.
(ix) Capitalization . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of
the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(x) Corporate Power . The
Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture and to perform its
obligations hereunder and thereunder; and all action required to be
taken for the due and proper authorization, execution and delivery
of each of this Agreement, the Securities and the Indenture and the
consummation of the transactions contemplated thereby has been duly
and validly taken.
(xi) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(xii) Authorization of the
Indenture . The Indenture has been duly qualified under the
1939 Act, and has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
6
moratorium or other similar laws
relating to or affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiii) Authorization of the
Securities . The Securities have been duly authorized and, at
the Closing Time, will have been duly executed by the Company and,
when authenticated, issued and delivered in the manner provided for
in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the
Indenture.
(xiv) Description of Securities
and Indenture . The Securities and the Indenture will conform
in all material respects to the respective statements relating
thereto contained in the Prospectus and will be in substantially
the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xv) Absence of Defaults and
Conflicts . Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which 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 (collectively, “Agreements and Instruments”)
except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of
the transactions contemplated herein and in the Registration
Statement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection
with the transactions contemplated hereby or thereby or in the
Registration Statement and the consummation of the transactions
contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus
under the caption “Use of Proceeds”) and compliance by
the Company with its obligations hereunder and thereunder, have
been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default or a Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments except for
such conflicts, breaches or defaults or Repayment Events or liens,
charges or encumbrances that, singly or in the aggregate, would not
result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations. As
used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
7
(xvi) Absence of Proceedings
. Except as disclosed in the Registration Statement, there is no
action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened, against the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement (other than
as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the properties or
assets of the Company or any of its subsidiaries or the
consummation of the transactions contemplated by this Agreement or
the performance by the Company of its obligations hereunder or
thereunder.
(xvii) Accuracy of Exhibits .
There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xviii) Absence of
Manipulation . Neither the Company nor any Affiliate has taken,
nor will the Company or any Affiliate take, directly or indirectly,
any action which is designed to or which has constituted or which
would be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xix) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery
or performance of the Indenture by the Company, except
(A) such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities
laws and except for the qualification of the Indenture under the
1939 Act, and the Rules and Regulations thereunder (the “1939
Act Regulations”).
(xx) Accounting Controls and
Disclosure Controls . The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are
executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Prospectus, since
the end of the Company’s most recent audited fiscal year,
there has been (1) no material weakness in the Company’s
internal control over financial reporting (as defined in Rules
13a-15 and 15d-15 under the 1934 Act Regulations) (whether or not
remediated) and (2) 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. The Company and each of
its subsidiaries employ disclosure controls and procedures (as
defined in Rules 13a-15 and 15d-15 under the 1934 Act Regulations)
that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules
and forms, and is accumulated and communicated to the
Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as
appropriate, to allow timely decisions regarding
disclosure.
8
(xxi) Compliance with the
Sarbanes-Oxley Act . There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any provision of the 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.
(xxii) Investment Company Act
. The Company is not required, and after giving effect to the
issuance and sale of the Securities and the application of the net
proceeds therefrom as described in the Prospectus will not be
required, to register as an “investment company” under
the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxiii) Pending Proceedings and
Examinations . The Registration Statement is not the subject of
a pending proceeding or examination under Section 8(d) or 8(e)
of the 1933 Act, and the Company is not the subject of a pending
proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities.
(b) Officer’s
Certificates . Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to
Underwriters; Closing .
(a) Securities . On the basis
of the representations, warranties and agreements herein contained
and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in
Schedule B, the 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 11 hereof.
(b) Payment . Payment of the
purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Shearman &
Sterling LLP, 599 Lexington Avenue, New York, New York 10022 or at
such other place as shall be agreed upon by the Representatives and
the Company, at 9:00 A.M. (Eastern time) on the fifth 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 the “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 Merrill Lynch 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 Merrill Lynch, 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. Merrill
Lynch, individually and not as representative of the 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 the Closing Time, but such payment
shall not relieve such Underwriter from its obligations
hereunder.
(c) Denominations;
Registration . Certificates for the Securities shall be in such
denominations ($1,000 or integral multiples thereof) and registered
in such names as the Representatives may request in writing at
least one full business day before the Closing Time. The
certificates
9
representing the Securities shall be made
available for examination and packaging by the Representatives in
The City of New York not later than 10:00 A.M. (Eastern time) on
the last business day prior to the Closing Time.
(d) Appointment of Qualified
Independent Underwriter . The Company hereby confirms its
engagement of Merrill Lynch as, and Merrill Lynch hereby confirms
its agreement with the Company to render services as, a
“qualified independent underwriter” within the meaning
of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the “NASD”) with respect to
the offering and sale of the Securities. Merrill Lynch, solely in
its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the “Independent
Underwriter.”
SECTION 3. Covenants of the
Company . The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities
Regulations and Commission Requests; Payment of Filing Fees .
The Company, subject to Section 3(b), 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 or new
registration statement relating to the Securities shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or the
filing of a new registration statement or any amendment or
supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or such new 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 or of any
examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company
becomes the subject of a proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities. The
Company will effect the filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without
reliance on Rule 424(b)(8)), 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. The Company shall pay the required Commission filing fees
relating to the Securities within the time required by Rule
456(b)(1) (i) of the 1933 Act Regulations without regard to
the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the 1933 Act Regulations (including, if applicable,
by updating the “Calculation of Registration Fee” table
in accordance with Rule 456(b)(1)(ii) either in a post-effective
amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and
Exchange Act Documents; Preparation of Final Term Sheet . The
Company will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement or new
registration statement relating to the Securities or any amendment,
supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration
Statement or amendment thereto at the time it became effective) or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, and the Company will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel
for the Underwriters shall object. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act
or 1934 Act Regulations within 48 hours prior to the
10
Applicable Time; the Company will give the
Representatives notice of its intention to make any such filing
from the Applicable Time to the Closing Time and will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing and will not file or
use any such document to which the Representatives or counsel for
the Underwriters shall object. The Company will prepare a final
term sheet (the “Final Term Sheet”) reflecting the
final terms of the Securities, in form and substance satisfactory
to the Representatives, and shall file such Final Term Sheet as an
“issuer free writing prospectus” pursuant to Rule 433
prior to the close of business two business days after the date
hereof; provided that the Company shall furnish the Representatives
with copies of any such Final Term Sheet a reasonable amount of
time prior to such proposed filing and will not use or file any
such document to which the Representatives or counsel to the
Underwriters shall object.
(c) Delivery of Registration
Statements . The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Original Registration Statement and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein or otherwise deemed
to be a part thereof) and signed copies of all consents and
certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Original
Registration Statement and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Original
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses
. The Company has delivered to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter
reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, durin
