Exhibit 1.1
$225,000,000
DOW JONES & COMPANY, INC.
3.875% Senior Notes due 2008
Purchase Agreement
------------------
February 14, 2005
J.P. Morgan Securities Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
As Representatives of the
several Initial Purchasers
listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Dow Jones &
Company, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several
Initial Purchasers listed in
Schedule 1 hereto (the "Initial
Purchasers"), for whom you are acting as
representatives (the "Representatives"),
$225,000,000 principal amount of
its 3.875% Senior Notes due 2008 (the
"Notes"). The Notes will be issued
pursuant to an Indenture to be dated as of
February 17, 2005 between the
Company and The Bank of New York, as
trustee (the "Trustee").
The Notes will
be sold to the Initial Purchasers without being
registered under the Securities Act of
1933, as amended (the "Securities
Act"), in reliance upon an exemption
therefrom. The Company has prepared a
preliminary offering memorandum dated
February 14, 2005 (the "Preliminary
Offering Memorandum") and will prepare an
offering memorandum also dated
February 14, 2005 (the "Offering
Memorandum") setting forth information
concerning the Company and the Notes.
Copies of the Preliminary Offering
Memorandum have been, and copies of the
Offering Memorandum will be,
delivered by the Company to the Initial
Purchasers pursuant to the terms of
this Agreement. The Company hereby confirms
that it has authorized the use
of the Preliminary Offering Memorandum and
the Offering Memorandum in
connection with the offering and resale of
the Notes by the Initial
Purchasers in the manner contemplated by
this Agreement. Capitalized terms
used but not defined herein shall have the
meanings given to such terms in
the Offering Memorandum. References herein
to the Preliminary Offering
Memorandum and the Offering Memorandum
shall be deemed to refer to and
include any document incorporated by
reference therein.
Holders of the
Notes (including the Initial Purchasers and their
direct and indirect transferees) will be
entitled to the benefits of a
Registration Rights Agreement (the
"Registration Rights Agreement"), to be
dated the Closing Date (as defined below),
pursuant to which the Company
will agree to file one or more registration
statements with the Securities
and Exchange Commission (the "Commission")
providing for the registration
under the Securities Act of the Notes or
the Exchange Notes referred to
(and as defined) in the Registration Rights
Agreement.
The Company
hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and
resale of the Notes, as follows:
1. Purchase and
Resale of the Notes. (a) The Company agrees to issue
and sell the Notes to the several Initial
Purchasers as provided in this
Agreement, and each Initial Purchaser, on
the basis of the representations,
warranties and agreements set forth herein
and subject to the conditions
set forth herein, agrees, severally and not
jointly, to purchase from the
Company the respective principal amount of
Notes set forth opposite such
Initial Purchaser's name in Schedule 1
hereto at a price equal to 99.505%
of the principal amount thereof plus
accrued interest, if any, from
February 17, 2005 to the Closing Date. The
Company will not be obligated to
deliver any of the Notes except upon
payment for all the Notes to be
purchased as provided herein.
(b) The Company
understands that the Initial Purchasers intend to
offer the Notes for resale on the terms set
forth in the Offering
Memorandum. Each Initial Purchaser,
severally and not jointly, represents,
warrants and agrees that:
(i) it is a qualified institutional buyer within the meaning of
Rule 144A under
the Securities Act (a "QIB") and an accredited
investor within
the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and
will not solicit
offers for, or offer or sell, the Notes by means of
any form of
general solicitation or general advertising within the
meaning of Rule
502(c) of Regulation D under the Securities Act
("Regulation D")
or in any manner involving a public offering within
the meaning of
Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and
will not solicit
offers for, or offer or sell, the Notes as part of
their initial
offering except:
(A) within the United States to persons whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under
the Securities Act ("Rule 144A") and in connection with each
such
sale, it has taken or will take reasonable steps to ensure that
the purchaser of the Notes is aware that such sale is being
made
in reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex A
hereto.
(c) Each Initial
Purchaser acknowledges and agrees that the Company
and, for purposes of the opinions to be
delivered to the Initial Purchasers
pursuant to Sections 5(f) and 5(g), counsel
for the Company and counsel for
the Initial Purchasers, respectively, may
rely upon the accuracy of the
representations and warranties of the
Initial Purchasers, and compliance by
the Initial Purchasers with their
agreements, contained in paragraph (b)
above (including Annex A hereto), and each
Initial Purchaser hereby
consents to such reliance.
(d) The Company
acknowledges and agrees that the Initial Purchasers
may offer and sell Notes to or through any
affiliate of an Initial
Purchaser and that any such affiliate may
offer and sell Notes purchased by
it to or through any Initial Purchaser.
2. Payment and
Delivery. (a) Payment for and delivery of the Notes
will be made at the offices of Simpson
Thacher & Bartlett LLP at 10:00
A.M., New York City time, on February 17,
2005, or at such other time or
place on the same or such other date, not
later than the fifth business day
thereafter, as the Representatives and the
Company may agree upon in
writing. The time and date of such payment
and delivery is referred to
herein as the "Closing Date".
(b) Payment for
the Notes shall be made by wire transfer in
immediately available funds to the
account(s) specified by the Company to
the Representatives against delivery to the
nominee of The Depository Trust
Company, for the account of the Initial
Purchasers, of one or more global
notes representing the Notes (collectively,
the "Global Notes"). The Global
Notes will be made available for inspection
by the Representatives not
later than 1:00 P.M., New York City time,
on the business day prior to the
Closing Date.
3.
Representations and Warranties of the Company. The Company
represents and warrants to each Initial
Purchaser that:
(a) Offering
Memorandum. The Preliminary Offering Memorandum, as of
its date, did not, and the Offering
Memorandum, in the form first used by
the Initial Purchasers to confirm sales of
the Notes and as of the Closing
Date, will not, contain any untrue
statement of a material fact or omit to
state a material fact necessary in order to
make the statements therein, in
the light of the circumstances under which
they were made, not misleading;
provided that the Company makes no
representation or warranty with respect
to any statements or omissions made in
reliance upon and in conformity with
information relating to any Initial
Purchaser furnished to the Company in
writing by such Initial Purchaser through
the Representatives expressly for
use in the Preliminary Offering Memorandum
and the Offering Memorandum.
(b) Incorporated
Documents. The documents incorporated by reference in
the Preliminary Offering Memorandum and the
Offering Memorandum, when filed
with the Commission, conformed or will
conform, as the case may be, in all
material respects with the requirements of
the Exchange Act and did not and
will not contain, when so filed, an untrue
statement of a material fact or
omit to state a material fact required to
be stated therein or necessary in
order to make the statements therein, in
the light of the circumstances
under which they were made, not
misleading.
(c) Company
Financial Statements. The Company's historical financial
statements and the related notes thereto
incorporated by reference in the
Preliminary Offering Memorandum and the
Offering Memorandum present fairly,
in all material respects, the consolidated
financial position of the
Company and its subsidiaries as of the
dates indicated and the consolidated
results of their operations and the changes
in their consolidated cash
flows for the periods specified; such
financial statements have been
prepared in conformity with generally
accepted accounting principles
applied on a consistent basis throughout
the periods covered thereby; the
other historical financial information of
the Company included or
incorporated by reference in the
Preliminary Offering Memorandum and the
Offering Memorandum has been derived from
the accounting records of the
Company and its subsidiaries and presents
fairly the information shown
thereby.
(d) MarketWatch
Financial Statements. The historical financial
statements and the related notes thereto of
MarketWatch, Inc.
("MarketWatch") incorporated by reference
in the Preliminary Offering
Memorandum and the Offering Memorandum
present fairly, in all material
respects, the financial position of the
Company and its subsidiaries as of
the dates indicated and the results of
their operations and the changes in
their cash flows for the periods specified;
such financial statements have
been prepared in conformity with generally
accepted accounting principles
applied on a consistent basis throughout
the periods covered thereby; the
other historical financial information of
MarketWatch included or
incorporated by reference in the
Preliminary Offering Memorandum and the
Offering Memorandum has been derived from
the accounting records of the
MarketWatch and its subsidiaries and
presents fairly the information shown
thereby.
(e) Pro Forma
Financial Statements. The pro forma financial
information and the related notes thereto
included in the Preliminary
Offering Memorandum and the Offering
Memorandum have been prepared in
accordance with the Commission's rules and
guidance with respect to pro
forma financial information, and the
assumptions underlying such pro forma
financial information are reasonable and
are set forth in the Preliminary
Offering Memorandum and the Offering
Memorandum.
(f) No Material
Adverse Change. Since the date of the most recent
financial statements of the Company
included or incorporated by reference
in the Preliminary Offering Memorandum and
the Offering Memorandum, (i)
there has not been any material change in
the capital stock or long-term
debt of the Company or any of its
subsidiaries, or any dividend or
distribution of any kind declared, set
aside for payment, paid or made by
the Company on any class of capital stock
(other than regular cash
dividends consistent with prior practice),
or any material adverse change,
or any development involving a prospective
material adverse change, in or
affecting the business, properties, results
of operations, financial
position or prospects of the Company and
its subsidiaries taken as a whole
and (ii) neither the Company nor any of its
subsidiaries has sustained any
material loss or interference with its
business from fire, explosion, flood
or other calamity, whether or not covered
by insurance, or from any labor
disturbance or dispute or any action, order
or decree of any court or
arbitrator or governmental or regulatory
authority, in each case except as
may occur in the ordinary course of
business and except as otherwise
disclosed in the Preliminary Offering
Memorandum and the Offering
Memorandum.
(g) Organization
and Good Standing. The Company and each of its
significant subsidiaries (as defined in
Section 12 hereof) have been duly
organized and are validly existing and in
good standing under the laws of
their respective jurisdictions of
organization, are duly qualified to do
business and are in good standing in each
jurisdiction in which their
respective ownership or lease of property
or the conduct of their
respective businesses requires such
qualification, and have all power and
authority necessary to own or hold their
respective properties and to
conduct the businesses in which they are
engaged, except where the failure
to be so qualified or in good standing or
have such power or authority
would not, individually or in the
aggregate, have a material adverse effect
on the business, properties, results of
operations, financial position or
prospects of the Company and its
subsidiaries taken as a whole or on the
performance by the Company of its
obligations under the Notes (a "Material
Adverse Effect"). The subsidiaries listed
in Schedule 2 to this Agreement
are the only significant subsidiaries of
the Company.
(h)
Capitalization. The Company has an authorized capitalization as
set forth in the Preliminary Offering
Memorandum and the Offering
Memorandum under the heading
"Capitalization" (except for any subsequent
issuances of capital stock pursuant to the
exercise of outstanding stock
options or under existing employee benefit
plans); and all the outstanding
shares of capital stock or other equity
interests of the Company have been
duly and validly authorized and issued, are
fully paid and non-assessable
(except, in the case of any foreign
subsidiary, for directors' qualifying
shares and except as otherwise described in
the Preliminary Offering
Memorandum and the Offering Memorandum) and
are owned directly or
indirectly by the Company, free and clear
of any lien, charge, encumbrance,
security interest, restriction on voting or
transfer or any other claim of
any third party.
(i) Indenture.
The Indenture has been duly authorized by the Company
and, when duly executed and delivered in
accordance with its terms by each
of the parties thereto, will constitute a
valid and legally binding
agreement of the Company enforceable
against the Company in accordance with
its terms, except as enforceability may be
limited by applicable
bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium
or similar laws affecting the enforcement
of creditors' rights generally or
by general equitable principles (whether
considered in a proceeding in
equity or at law) (collectively, the
"Enforceability Exceptions"); and on
the Closing Date, the Indenture will
conform in all material respects to
the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust
Indenture Act"), and the rules and
regulations of the Commission applicable
to an indenture that is qualified
thereunder.
(j) Registration
Rights Agreement. The Registration Rights Agreement
has been duly authorized by the Company
and, when duly executed and
delivered in accordance with its terms by
each of the parties thereto, will
constitute a valid and legally binding
agreement of the Company enforceable
against the Company in accordance with its
terms, subject to the
Enforceability Exceptions, and except that
rights to indemnity and
contribution thereunder may be limited by
applicable law and public policy.
(k) The Notes.
The Notes have been duly authorized by the Company and,
when duly executed, authenticated, issued
and delivered as provided in the
Indenture and paid for as provided herein,
will be duly and validly issued
and outstanding and will constitute valid
and legally binding obligations
of the Company enforceable against the
Company in accordance with their
terms, subject to the Enforceability
Exceptions, and will be entitled to
the benefits of the Indenture.
(l) The Exchange
Notes. The Exchange Notes have been duly authorized
by the Company and, when duly executed,
authenticated, issued and delivered
as contemplated by the Registration Rights
Agreement, will be duly and
validly issued and outstanding and will
constitute valid and legally
binding obligations of the Company, as
issuer, enforceable against the
Company in accordance with their terms,
subject to the Enforceability
Exceptions, and will be entitled to the
benefits of the Indenture.
(m) Purchase
Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(n) Descriptions
of the Transaction Documents. Each of this Agreement,
the Notes, the Indenture, the Exchange
Notes and the Registration Rights
Agreement (collectively, the "Transaction
Documents") conforms in all
material respects to the descriptions
thereof contained in the Preliminary
Offering Memorandum and the Offering
Memorandum.
(o) No Violation
or Default. Neither (i) the Company nor any of its
significant subsidiaries is in violation of
its charter, by-laws or similar
organizational documents; (ii) the Company
nor any of its subsidiaries is
in default, and no event has occurred that,
with notice or lapse of time or
both, would constitute such a default, in
the due performance or observance
of any term, covenant or condition
contained in any indenture, mortgage,
deed of trust, loan agreement or other
agreement or instrument to which the
Company or any of its subsidiaries is a
party or by which the Company or
any of its subsidiaries is bound or to
which any of the property or assets
of the Company or any of its subsidiaries
is subject; or (iii) the Company
nor any of its subsidiaries is in violation
of any law or statute or any
judgment, order, rule or regulation of any
court or arbitrator or
governmental or regulatory authority,
except, in the case of clause (ii) or
(iii) above, for any such violation that
would not, individually or in the
aggregate, have a Material Adverse
Effect.
(p) No
Conflicts. The execution, delivery and performance by the
Company of each of the Transaction
Documents, the issuance and sale of the
Notes and compliance by the Company with
the terms thereof and the
consummation of the transactions
contemplated by the Transaction Documents
will not (i) conflict with or result in a
breach or violation of any of the
terms or provisions of, or constitute a
default under, or result in the
creation or imposition of any lien, charge
or encumbrance upon any property
or assets of the Company or any of its
subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan
agreement or other agreement or
instrument to which the Company or any of
its subsidiaries is a party or by
which the Company or any of its
subsidiaries is bound or to which any of
the property or assets of the Company or
any of its subsidiaries is
subject, (ii) result in any violation of
the provisions of the charter,
by-laws or similar organizational documents
of the Company or any of its
significant subsidiaries or (iii) result in
the violation of any law or
statute or any judgment, order, rule or
regulation of any court or
arbitrator or governmental or regulatory
authority, except, in the case of
clause (i) above, for any such conflict,
breach or violation that would
not, individually or in the aggregate, have
a Material Adverse Effect.
(q) No Consents
Required. Assuming the accuracy of the Initial
Purchasers' representations and warranties
contained herein, no consent,
approval, authorization, order,
registration or qualification of or with
any court or arbitrator or governmental or
regulatory authority is required
for the execution, delivery and performance
by the Company of each of the
Transaction Documents, the issuance and
sale of the Notes and compliance by
the Company with the terms thereof and the
consummation of the transactions
contemplated by the Transaction Documents,
except for such consents,
approvals, authorizations, orders and
registrations or qualifications as
may be required (i) under applicable state
securities laws in connection
with the purchase and resale of the Notes
by the Initial Purchasers and
(ii) with respect to the Exchange Notes
under the Securities Act, the Trust
Indenture Act and applicable state
securities laws as contemplated by the
Registration Rights Agreement.
(r) Legal
Proceedings. Except as described in the Preliminary Offering
Memorandum and the Offering Memorandum,
there are no legal, governmental or
regulatory investigations, actions, suits
or proceedings pending to which
the Company or any of its subsidiaries is a
party or to which any property
of the Company or any of its subsidiaries
is the subject that, individually
or in the aggregate, if determined
adversely to the Company or any of its
subsidiaries, would reasonably be expected
to have a Material Adverse
Effect; and to the best knowledge of the
Company, no such investigations,
actions, suits or proceedings are
threatened or, to the best knowledge of
the Company, contemplated by any
governmental or regulatory authority or
threatened by others.
(s) Independent
Registered Public Accounting Firm.
PricewaterhouseCoopers LLP, which has
certified certain financial
statements of the Company and its
subsidiaries as well as of MarketWatch
and its subsidiaries, respectively, is an
independent registered public
accounting firm with respect to the Company
and its subsidiaries within the
meaning of Rule 101 of the Code of
Professional Conduct of the American
Institute of Certified Public Accountants
and its interpretations and
rulings thereunder.
(t) Investment
Company Act. Neither the Company nor any significant
subsidiary is, and after giving effect to
the offering and sale of the
Notes and the application of the proceeds
thereof as described in the
Offering Memorandum, none of them will be,
an "investment company" or an
entity "controlled" by an "investment
company" within the meaning of the
Investment Company Act of 1940, as amended,
and the rules and regulations
of the Commission thereunder (collectively,
"Investment Company Act").
(u) No Broker's
Fees. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or
understanding with any person
(other than this Agreement) that would give
rise to a valid claim against
any of them or any Initial Purchaser for a
brokerage commission, finder's
fee or like payment in connection with the
offering and sale of the Notes.
(v) Rule 144A
Eligibility. On the Closing Date, the Notes will not be
of the same class as securities listed on a
national securities exchange
registered under Section 6 of the
Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or quoted in
an automated inter-dealer
quotation system; and each of the
Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective
date, contains or will contain
all the information that, if requested by a
prospective purchaser of the
Notes, would be required to be provided to
such prospective purchaser
pursuant to Rule 144A(d)(4) under the
Securities Act.
(w) No
Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D)
has, directly or through any agent,
sold, offered for sale, solicited offers to
buy or otherwise negotiated in
respect of, any security (as defined in the
Securities Act), that is or
will be integrated with the sale of the
Notes in a manner that would
require registration of the Notes under the
Securities Act.
(x) No General
Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any
other person acting on its or their
behalf (other than the Initial Purchasers,
as to which no representation is
made) has (i) solicited offers for, or
offered or sold, the Notes by means
of any form of general solicitation or
general advertising within the
meaning of Rule 502(c) of Regulation D or
in any manner involving a public
offering within the meaning of Section 4(2)
of the Securities Act or (ii)
engaged with respect to the Notes in any
directed selling efforts within
the meaning of Regulation S under the
Securities Act ("Regulation S"), and
all such persons have complied with the
offering restrictions requirement
of Regulation S.
(y) Securities
Law Exemptions. Assuming the accuracy of the
representations and warranties of the
Initial Purchasers contained in
Section 1(b) (including Annex A hereto) and
their compliance with their
agreements set forth therein, it is not
necessary, in connection with the
issuance and sale of the Notes to the
Initial Purchasers and the offer,
resale and delivery of the Notes by the
Initial Purchasers in the manner
contemplated by this Agreement and the
Offering Memorandum, to register the
Notes under the Securities Act or to
qualify the Indenture under the Trust
Indenture Act.
(z) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that
could reasonably be expected to
cause or result in any stabilization or
manipulation of the price of the
Notes.
(aa)
Forward-Looking Statements. No forward-looking statement
(within
the meaning of Section 27A of the
Securities Act and Section 21E of the
Exchange Act) contained or incorporated by
reference in the Preliminary
Offering Memorandum and the Offering
Memorandum has been made or reaffirmed
without a reasonable basis or has been
disclosed other than in good faith.
(bb)
Intellectual Property. The Company and its subsidiaries own or
possess adequate rights to use all material
trademarks, service marks,
trade names, trademark registrations,
service mark registrations,
copyrights, licenses, patents, patent
applications and know-how (including
trade secrets and other unpatented and/or
unpatentable proprietary or
confidential information, systems or
procedures) necessary for the conduct
of their respective businesses, except as
otherwise disclosed in the
Preliminary Offering Memorandum or the
Offering Memorandum; and the conduct
of their respective businesses will not
conflict in any material respect
with any such rights of others, and the
Company and its subsidiaries have
not received any notice of any claim of
infringement of or conflict with
any such rights of others, except for
notices the content of which if
accurate would not, individually or in the
aggregate, have a Material
Adverse Effect.
(cc) Accounting
Controls. Each of the Company and its subsidiaries
maintain a system of internal accounting
controls sufficient to provided
reasonable assurances that (i) transactions
are executed in accordance with
management's general or specific
authorization, (ii) transactions are
recorded as necessary to permit preparation
of financial statements in
conformity with generally accepted
accounting principles and to maintain
accountability for assets, (iii) access to
assets is permitted only in
accordance with management's general or
specific authorization and (iv) the
recorded accountability for assets is
compared with the existing assets at
reasonable intervals and appropriate action
is taken with respect to any
differences.
(dd) Disclosure
Controls and Procedures. The Company and its
subsidiaries employ disclosure controls and
procedures that are designed to
ensure that information required to be
disclosed by the Company in the
reports that it files or submits under the
Exchange Act is properly and
effectively recorded, processed, summarized
and reported within the time
periods specified in applicable rules,
regulations and forms promulgated by
the Commission and is properly and
effectively accumulated and communicated
to the Company's directors and officers,
including its principal executive
officer and principal financial officer, as
appropriate, to allow timely
decisions regarding disclosure of such
required information.
4. Further
Agreements of the Company. The Company covenants and agrees
with each Initial Purchaser that:
(a) Delivery of
Copies. The Company will deliver to the Initial
Purchasers as many copies of the
Preliminary Offering Memorandum and the
Offering Memorandum (including all
amendments and supplements thereto) as
the Representatives may reasonably
request.
(b) Amendments
or Supplements. Before making or distributing any
amendment or supplement to the Preliminary
Offering Memorandum or the
Offering Memorandum or, prior to and
including the Closing Date, filing
with the Commission any document that will
be incorporated by reference
therein, the Company will furnish to the
Representatives and counsel for
the Initial Purchasers a copy of such
proposed amendment or supplement or
document to be incorporated by reference
therein for review, and will not
distribute any such proposed amendment or
supplement or file any such
document with the Commission to which the
Representatives reasonably and
promptly object. Notwithstanding the
preceding sentence, after the Closing
Date, the Company will not be required to
provide the Representatives and
counsel for the Initial Purchasers, prior
to filing, with copies of any
document that is to be incorporated by
reference into the Preliminary
Offering Memorandum or the Offering
Memorandum or to refrain from filing
any such document that is to be so
incorporated by reference to which the
Representatives and counsel to the Initial
Purchasers reasonably and timely
object, provided that the Company will, to
the extent reasonably
practicable in the light of the
circumstances, consult with the
Representatives and counsel for the Initial
Purchasers as to the form and
substance of any such document that is to
be so incorporated by reference
prior to its filing.
(c) Notice to
the Representatives. The Company will advise the
Representatives promptly, and confirm such
advice in writing, (i) of the
issuance by any governmental or regulatory
authority of any order
preventing or suspending the use of the
Preliminary Offering Memorandum or
the Offering Memorandum or the initiation
or threatening of any proceeding
for that purpose; (ii) of the occurrence of
any event at any time prior to
the completion of the initial offering of
the Notes as a result of which
the Offering Memorandum as then amended or
supplemented would include any
untrue statement of a material fact or omit
to state a material fact
necessary in order to make the statements
therein, in the light of the
circumstances existing when the Offering
Memorandum is delivered to a
purchaser, not misleading; and (iii) of the
receipt by the Company of any
notice with respect to any suspension of
the qualification of the Notes for
offer and sale in any jurisdiction or the
initiation or threatening of any
proceeding for such purpose; and the
Company will use its reasonable best
efforts to prevent the issuance of any such
order preventing or suspending
the use of the Preliminary Offering
Memorandum or the Offering Memorandum
or suspending any such qualification of the
Notes and, if any such order is
issued, will obtain as soon as reasonably
possible the withdrawal thereof.
(d) Ongoing
Compliance of the Offering Memorandum. If at any time
prior to the completion of the initial
offering of the Notes (i) any event
shall occur or condition shall exist as a
result of which the Offering
Memorandum 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 or
omissions therefrom, in the
light of the circumstances existing when
the Offering Memorandum is
delivered to purchasers, not misleading or
(ii) it is necessary to amend or
supplement the Offering Memorandum to
comply with law, the Company will
immediately notify the Initial Purchasers
thereof and forthwith prepare
and, subject to Section 4(b) above, file
with the Commission any document
to be incorporated by reference therein and
furnish to the Initial
Purchasers such amendments or supplements
to the Offering Memorandum as may
be necessary so that the statements in the
Offering Memorandum as so
amended or supplemented (or including such
document to be incorporated by
reference therein) will not, in the light
of the circumstances existing
when the Offering Memorandum is delivered
to purchasers, be misleading in
any material respect or so that the
Offering Memorandum will comply with
law.
(e) Blue Sky
Compliance. The Company will cooperate with the Initial
Purchasers to qualify the Notes for offer
and sale under the securities or
Blue Sky laws of such jurisdictions as the
Representatives shall reasonably
request and will continue such
qualifications in effect so long as required
for the offering and resale of the Notes;
provided that the Company shall
not be required to (i) qualify as a foreign
corporation or other entity or
as a dealer in securities in any such
jurisdiction where it would not
otherwise be required to so qualify, (ii)
file any general consent to
service of process in any such
jurisdiction, (iii) subject itself to
taxation in any such jurisdiction if it is
not otherwise so subject or (iv)
make any change to its certificate of
incorporation or by-laws.
(f) Clear Market. During the
period from the date hereof through and
including the Closing Date, the Company
will not, without the prior written
consent of the Representatives, offer,
sell, contract to sell or otherwise
dispose of any debt securities issued or
guaranteed by the Company and
having a tenor of more than one year.
(g) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Notes as described in the
Offering Memorandum under the heading
"Use of Proceeds".
(h) Rules
144(d)(4) Information. So long as the Notes remain
outstanding and are "restricted securities"
within the meaning of Rule
144(a)(3) under the Securities Act, the
Company will, during any period in
which the Company is not subject to and in
compliance with Section 13 or
15(d) of the Exchange Act, furnish to
holders of the Notes and prospective
purchasers of the Notes designated by such
holders, upon the request of
such holders or such prospective
purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
(i) DTC. The
Company will assist the Initial Purchasers in arranging
for the Notes to be eligible for clearance
and settlement through The
Depository Trust Company ("DTC").
(j) No Resales
by the Company. Until the issuance of the Exchange
Notes, the Company will not, and will not
permit any of its affiliates (as
defined in Rule 144 under the Securities
Act) to, resell any of the Notes
that have been acquired by any of them,
except for Notes purchased by the
Company or any of its affiliates and resold
in a transaction registered
under the Securities Act.
(k) No
Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D)
will, directly or through any
agent, sell, offer for sale, solicit offers
to buy or otherwise negotiate
in respect of, any security (as defined in
the Securities Act), that is or
will be integrated with the sale of the
Notes in a manner that would
require registration of the Notes under the
Securities Act.
(l) No General
Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any
other person acting on their behalf
(other than the Initial Purchasers, as to
which no covenant is given) will
(i) solicit offers for, or offer or sell,
the Notes by means of any form of
general solicitation or general advertising
within the meaning of Rule
502(c) of Regulation D or in any manner
involving a public offering within
the meaning of Section 4(2) of the
Securities Act or (ii) engage with
respect to the Notes in any directed
selling efforts within the meaning of
Regulation S, and all such persons will
comply with the offering
restrictions requirement of Regulation
S.
(m) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that
could reasonably be expected to
cause or result in any stabilization or
manipulation of the price of the
Notes.
(n) Ratings. The
Company will take all reasonable action necessary to
enable Standard & Poor's Ratings
Services, a division of McGraw Hill, Inc.
("S&P"), Moody's Investors Service Inc.
("Moody's") and Fitch Ratings
("Fitch") to provide their respective
ratings of the Notes.
5. Conditions of
Initial Purchasers' Obligations. The obligation of
each Initial Purchaser to purchase Notes on
the Closing Date as provided
herein is subject to the performance by the
Company of its covenants and
other obligations hereunder and to the
following additional conditions:
(a)
Representations and Warranties. The representations and
warranties
of the Company contained herein shall be
true and correct on the date
hereof and on and as of the Closing Date;
and the statements of the Company
and its officers made in any certificates
delivered pursuant to this
Agreement shall be true and correct on and
as of the Closing Date.
(b) No
Downgrade. Subsequent to the execution
