Exhibit 1.1
$150,000,000
QUESTAR GAS COMPANY
(a Utah corporation)
$50,000,000 6.30% Notes due 2018
$100,000,000 7.20% Notes due 2038
PURCHASE AGREEMENT
Dated: March 24, 2008
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1490185v.6
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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1490185v.6
$150,000,000
QUESTAR GAS COMPANY
(a Utah corporation)
$50,000,000 6.30% Notes due 2018
$100,000,000 7.20% Notes due 2038
PURCHASE AGREEMENT
March 24, 2008
Barclays Capital Inc.
200 Park Avenue
New York, NY 10166
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
as Representatives of the several Underwriters
Ladies and Gentlemen:
Questar Gas Company, a Utah corporation (the
“Company”), confirms its agreement with Barclays
Capital Inc. and J.P. Morgan Securities Inc. 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
J.P. Morgan Securities 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
6.30% Notes due 2018 (the “Notes due 2018”) and
$100,000,000 aggregate principal amount of the Company’s
7.20% Notes due 2038) (the “Notes due 2038”)
(collectively, the “Securities”). The
Securities are to be issued pursuant to an indenture dated as of
May 1, 1992 (the “Indenture”) between the Company
and Wells Fargo Bank, NA, as trustee (the
“Trustee”). The term “Indenture,”
as used herein, includes the Officers’ Certificates (as
defined in the Indenture) establishing the form and terms of the
Securities pursuant to Sections 201 and 301 of the
Indenture.
The Company understands that the Underwriters
propose to make a public offering of the Securities as soon as
the Representatives deem advisable after this Agreement has been
executed and delivered 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”).
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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. 333-147317), 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 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.
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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 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 6:38 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
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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.
(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.
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(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 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.
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(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.
(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
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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 A- 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 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
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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 99.290% of the principal amount of
the Notes due 2018 and 99.062% of the principal amount of the
Notes due 2038, plus accrued interest, if any, from the Closing
Time, the respective aggregate principal amounts of Securities
set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amounts 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. J.P. Morgan Securities
Inc., individually and not as a representative of the
Underwriters, may (but shall not be obligated to) make payment
of the purchase price for the Securities 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.
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(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.
(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
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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 final term sheets 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
sheets pursuant to Rule 433(d) under the Securities Act
within the time required by such rule (such term sheets,
collectively, 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 included in Schedule C hereto. Any such
free writing prospectus consented to by the Representatives is
hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and
(ii) has complied and will comply, as the case may be, with
the requirements of Rules 164 and 433 of the Securities Act
applicable to any Permitted Free
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