Exhibit 1.1
December 11, 2006
Sunoco, Inc.
Debt Securities
Preference Stock
Common Stock
Warrants
Sunoco Capital I
Sunoco Capital II
Trust Preferred
Securities
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
1. Introductory .
(i) Sunoco, Inc., a Pennsylvania corporation (the
“Company” ), proposes to issue and sell from
time to time certain of its senior unsecured debt securities,
subordinated unsecured debt securities, senior and subordinated
convertible debt securities, preference stock (the
“Preference Stock” ), common stock (the
“Common Stock,” and together with the Preference
Stock, the “Equity Securities” ) and warrants to
purchase debt securities or Equity Securities and (ii) Sunoco
Capital I and Sunoco Capital II, each a Delaware statutory business
trust (each a “Trust” and, collectively, the
“Trusts” ), propose to issue and sell from time
to time certain trust preferred securities (the “Capital
Securities” ) of the Trust, guaranteed by the Company
pursuant to a Guarantee Agreement (the “Guarantee
Agreement” ) to be entered into between the Company and
Bankers Trust Company (the “Guarantee Trustee” )
(the Capital Securities together with the Preference Stock, the
“Preferred Securities” ), each registered under
the registration statement referred to in Section 2(a)
(collectively, the “Registered Securities” ).
The Registered Securities constituting senior debt securities will
be issued under an indenture, dated as of June 30, 2000 (the
“Senior Indenture” ), between the Company and
Citibank, N.A., as Trustee, in one or more series, which series may
vary as to interest rates, maturities, redemption provisions,
selling prices and other terms. The Registered Securities
constituting subordinated debt securities will be issued under an
indenture, dated as of May 15, 1994 (the
“Subordinated Indenture,” and together with the
Senior Indenture, the “Indentures” ), between
the Company and Bankers Trust Company, as Trustee, in one or more
series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The
Registered Securities constituting Preference Stock may be issued
in one or more series, each of which series may vary as to dividend
rates, redemption provisions, selling prices and other
terms.
The Registered Securities
constituting Capital Securities may be issued in one or more
series, which series may vary as to distribution rate, maturities,
redemption provisions, selling prices and other terms. The Company
will be the owner of all of the beneficial ownership interests
represented by common securities (the “Common
Securities” ) of each of the Trusts.
Concurrently with the issuance of the Capital
Securities by each Trust, each Trust will invest the proceeds
thereof in the Company’s Junior Subordinated Debentures (the
“Junior Subordinated Debentures” ). The Junior
Subordinated Debentures are to be issued pursuant to an indenture
(the “Trust Indenture” ) to be entered into
between the Company and Bankers Trust Company (the
“Indenture Trustee” ).
Particular series or offerings of
Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms
of offering determined at the time of sale. If specified in a Terms
Agreement, the Company and, as the case may be, the Trust will
grant to the Underwriters an option (the
“Option” ) to purchase up to that additional
amount of Registered Securities specified in such Terms Agreement
(the “Options Securities” ).
The Registered Securities involved
in any such offering are hereinafter referred to as the
“Offered Securities.” The firm or firms which
agree to purchase the Offered Securities are hereinafter referred
to as the “ Underwriters ” of such securities,
and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the
“Representatives” ; provided, however, that if
the Terms Agreement does not specify any representative of the
Underwriters, the term “Representatives,” as
used in this Agreement (other than in Sections 2(b), 5(d) and 6 and
the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties
of the Company . The Company and, if the Offered Securities are
Capital Securities, the Trust, as of the Execution Time (as defined
below) and on the Delivery Date (as defined below), represents and
warrants to, and agrees with, each Underwriter that:
(a) (1) Two registration
statements (No. 33-53717 and 333-40876), including a related Base
Prospectus (as defined below)contained in the latest such
registration statement, relating to the Registered Securities have
been filed with the Securities and Exchange Commission (the
“Commission” ) and have become effective. Such
registration statements, including exhibits and financial
statements and any prospectus supplement relating to the Securities
that is filed with the Commission pursuant to and in accordance
with Rule 424(b) under the Securities Act of 1933, as amended (the
“Act” ) and deemed part of such registration
statement pursuant to Rule 430B of the rules and regulations, as
amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective prior to the Delivery Date,
shall also mean such registration statements as amended at the time
of any Terms Agreement referred to in Section 3, are
hereinafter collectively referred to as the “Registration
Statement” and the prospectus included in the latest such
registration statement, as supplemented as contemplated by
Section 3 to reflect the terms of the Offered Securities (if
they are debt securities or Preferred Securities) and the terms of
the offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) (
“Rule 424(b)” ) under the Securities Act of 1933
(the “Act” ) after the Execution Time, together
with the Base Prospectus (the “Final Prospectus”
). As used in this Agreement, (i) “Preliminary
Prospectus” means any preliminary prospectus supplement
to the Base Prospectus referred to above specifically relating to
the Offered Securities which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus; (ii)
“Base Prospectus” shall mean the base prospectus
referred to above contained in the Registration Statement at the
Execution Time; (iv) “Free Writing
Prospectus” means a
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free writing prospectus, as defined
in Rule 405 of the Rules and Regulations; (vi)
“Issuer Free Writing Prospectus” shall mean an
issuer free writing prospectus, as defined in Rule 433 of the Rules
and Regulations; (vii) “Disclosure
Package” shall mean (A) the Preliminary Prospectus
used most recently prior to the Execution Time, (B) the Issuer
Free Writing Prospectuses, if any, and the information, if any,
identified in Schedule 1 to the Terms Agreement, (C) the final
term sheet prepared and filed pursuant to Section 4(d)), if
any, and (D) any other Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat
as part of the Disclosure Package; and (viii)
“Effective Date” shall mean each date and time
that the Registration Statement and any post-effective amendment or
amendments thereto became or becomes effective; (ix)
“Execution Time” shall mean the date and time
that the Terms Agreement is executed and delivered by the parties
hereto.
(2) Any reference herein to the
Registration Statement, the Preliminary Prospectus, the Disclosure
Package or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act” ), on or before the date of this Agreement and, if
the Company files any document pursuant to the Exchange Act after
the date of this Agreement and prior to the termination of the
offering of the Offered Securities by the Underwriters, which
documents are deemed to be incorporated by reference into the Final
Prospectus, such filing shall constitute an amendment or supplement
to the Final Prospectus and the term “Final
Prospectus” shall refer also to said prospectus as
supplemented by the documents so filed from and after the time said
documents are filed with the Commission.
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Delivery Date (as
defined herein), the Final Prospectus (and any supplement thereto)
will, contain all statements which are required to be contained
therein by the Act, the Exchange Act, the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act” ),
and the rules and regulations of the Commission under such acts
(the “ Rules and Regulations” ); on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b)
of the Rules and Regulations and on the Delivery Date, the Final
Prospectus (together with any supplement thereto) will not 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, not
misleading; provided, however, that no representation or warranty
is made as to the Statement of Eligibility and Qualification on
Form T-1 of any trustee under the Trust Indenture Act, or as to
statements in, or omissions from, the Registration Statement or the
Final Prospectus in reliance upon, or in conformity with, written
information furnished to the Company or the Trust by any
Underwriter through the Representatives, if any, specifically for
use therein.
(c) (i) The Disclosure Package
and (ii) each electronic roadshow used by the Company or the
Trust when taken together as a whole with the Disclosure Package do
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
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which they were made, not
misleading; provided, however, that no representation or warranty
is made as to statements in, or omissions from, the Disclosure
Package or any electronic roadshow in reliance upon, or in
conformity with, written information furnished to the Company or
the Trust by any Underwriter through the Representatives, if any,
specifically for use therein.
(d) (i) At the earliest time
after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Offered Securities and
(ii) as of the Execution Time (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), without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer Free Writing
Prospectus and the final term sheet prepared and filed pursuant to
Section 4(d) does not include any information that conflicts
with the information contained in the Registration Statement,
including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements
in, or omissions from, any Issuer Free Writing Prospectus in
reliance upon, or in conformity with, written information furnished
to the Company or the Trust by any Underwriter through the
Representatives, if any, specifically for use therein.
(f) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the Commonwealth of Pennsylvania, with all corporate
power and authority to own its properties and conduct its business
as described in the Preliminary Prospectus and the Final
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which the failure to so qualify or be in good standing would have a
material adverse effect on the business, properties, financial
position, shareholders’ equity, or results of operations of
the Company and its subsidiaries on a consolidated basis (a
“Material Adverse Effect” ).
(g) At the respective dates
indicated in the Preliminary Prospectus and the Final Prospectus,
the Company has an authorized capitalization as set forth in the
most recent Preliminary Prospectus and the Final Prospectus, as the
case may be, and all of the issued and outstanding capital shares
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable.
(h) Each of the Trusts has been duly
created and is validly existing as a statutory business trust in
good standing under the Business Trust Act of the State of Delaware
(the “Delaware Business Trust Act” ) with the
trust power and authority to own property and conduct its
respective business as described in any Preliminary Prospectus and
the Final Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement
as described in any Preliminary Prospectus and the Final
Prospectus; neither Trust is a party to or bound by any agreement
or instrument other than its respective Terms Agreement, the
Amended and Restated Declaration of Trust (the
“Declaration” ), among the Company and Bankers
Trust Company, Bankers Trust (Delaware), Paul A. Mulholland, Barry
H. Rosenberg and Katria N. Kowal (the “Trustees”
), and the agreements and instruments contemplated by its
respective
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Declaration and described in the
Disclosure Package and the Final Prospectus; each Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by the applicable Terms Agreement and the
agreements and instruments contemplated by the respective
Declaration and described in the most recent Preliminary Prospectus
and the Final Prospectus; and neither Trust is a party to or
subject to any action, suit or proceeding of any nature.
(i) Each Declaration has been duly
authorized and, when duly executed and delivered by the Company and
the Trustees, will constitute a valid and legally binding
obligation of the Company, enforceable 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
to general equity principles and will conform in all material
respects to the description thereof contained in the most recent
Preliminary Prospectus and the Final Prospectus.
(j) The Guarantee Agreement has been
duly authorized and, when duly executed and delivered by the
Company and the Guarantee Trustee, will constitute a valid and
legally binding obligation of the Company enforceable 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
to general equity principles and will conform in all material
respects to the description thereof contained in the most recent
Preliminary Prospectus and the Final Prospectus.
(k) For purposes of this Agreement,
the term “Significant Subsidiary” shall have the
meaning set forth in Rule 405 of the Rules and Regulations, but
shall exclude any subsidiary of the Company (as that term is
defined in Rule 405 of the Rules and Regulations) the major part of
the business of which consists of finance, banking, credit,
leasing, real estate, financial services or other similar services,
or coal or coke operations or any combination thereof. Each
Significant Subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with all corporate power and
authority to own its properties and conduct its business as
described in the most recent Preliminary Prospectus and the Final
Prospectus; and each such Significant Subsidiary of the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which the failure to so
qualify or be in good standing would have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and
validly issued and is fully paid, non-assessable; and owned by the
Company, directly or indirectly, free from liens, encumbrances,
equities or claims.
(l) If the Offered Securities are
debt securities, the relevant Indenture has been duly authorized
and has been duly qualified under the Trust Indenture Act; the
Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined), the relevant
Indenture will have been duly executed and delivered by the
Company, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the
Disclosure Package and the Final Prospectus and such Indenture
(assuming the due authorization, execution and
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delivery thereof by the trustee, or
trustees, under such Indenture) and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable 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 to general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(m) If the Offered Securities are
Preference Stock, the Offered Securities have been duly authorized
and, when the Offered Securities have been delivered and paid for
in accordance with the Terms Agreement on the Closing Date (as
defined below), such Offered Securities will have been validly
issued, fully paid and non-assessable and will conform in all
material respects to the description thereof contained in the
Disclosure Package and the Final Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the
Offered Securities.
(n) If the Offered Securities are
Common Stock, the Offered Securities and all other outstanding
shares of capital stock of the Company have been duly authorized;
when the Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been, validly issued,
fully paid and non-assessable and will conform in all material
respects to the description thereof contained in the Disclosure
Package and the Final Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities.
(o) If the Offered Securities are
convertible, the shares of Common Stock initially issuable upon
conversion of such Offered Securities will have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
non-assessable; the outstanding shares of Common Stock have been
duly authorized and validly issued, are fully paid and
non-assessable and will conform in all material respects to the
description thereof contained in the Disclosure Package and the
Final Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock.
(p) If the Offered Securities are
Capital Securities, the Capital Securities and the Common
Securities, upon issuance and delivery and payment therefor in the
manner described herein, will be, duly authorized, validly issued,
fully paid and non-assessable and will conform in all material
respects to the descriptions of the Capital Securities and the
Common Securities contained in the Disclosure Package and the Final
Prospectus; each of the Trust Indenture and the Guarantee Agreement
has been duly authorized by the Company and, when duly executed and
delivered by the Company and, in the case of the Indenture, the
Indenture Trustee and, in the case of the Guarantee Agreement, the
Guarantee Trustee, will constitute valid and legally binding
obligations of the Company, enforceable 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
to general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing; and the Junior Subordinated Debentures and the Guarantee
have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Trust
Indenture and the Guarantee Agreement, respectively, will be duly
and validly
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issued and outstanding, and will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Trust Indenture and the Guarantee
Agreement, respectively, enforceable 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
to general equity principles; and the Junior Subordinated
Debentures and the Guarantee, when issued and delivered, will
conform in all material respects to the description thereof
contained in the Disclosure Package and the Final
Prospectus.
(q) If the Offered Securities are
Common Stock or are convertible into Common Stock, except as
disclosed in the most recent Preliminary Prospectus and the Final
Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment.
(r) If the Offered Securities are
Common Stock or are convertible into Common Stock, except as
disclosed in the most recent Preliminary Prospectus and the Final
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act.
(s) If the Offered Securities
constitute Common Stock or are convertible into Common Stock, the
outstanding shares of Common Stock are listed on The New York Stock
Exchange (the “Stock Exchange” ) and the Offered
Securities (if they are Common Stock) or the Common Stock into
which the Offered Securities are convertible (if they are
convertible) has been approved for listing on subject to notice of
issuance. If the Offered Securities are debt securities or
Preferred Securities, they have been approved for listing on the
stock exchange indicated in the Terms Agreement, subject to notice
of issuance.
(t) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance and
sale of the Offered Securities by the Company, except such as have
been obtained and made under the Act, such as may be required under
the Exchange Act, or any applicable foreign or state securities
laws in connection with the purchase and distribution of the
Offered Securities by the Underwriters, and, if the Offered
Securities are debt securities, the Trust Indenture Act, and the
filing of a statement with the Department of State of the
Commonwealth of Pennsylvania with respect to any shares of
Preference Stock to be issued by the Company.
(u) The execution, delivery and
performance by the Company of the relevant Indenture (if the
Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance
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and sale of the Offered Securities
and, if the Offered Securities are debt securities or Preference
Stock, the compliance by the Company with the terms and provisions
thereof, and (if the Offered Securities are Capital Securities) the
execution, delivery and performance of the Declaration, the Common
Securities and the Capital Securities by the Trust, the purchase of
the Junior Subordinated Debentures by the Trust from the Company,
the distribution of the Junior Subordinated Debentures upon the
liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the most recent Preliminary Prospectus
and the Final Prospectus, and the consummation of the transactions
contemplated herein and in the Declaration and the execution,
delivery and performance by the Company of the Guarantee Agreement,
the Trust Indenture and the Junior Subordinated Debentures by the
Company, the purchase of the Common Securities by the Company from
the Trust, and the consummation by the Company of the transactions
herein will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any Significant Subsidiary of the Company or, as the case may be,
the Trust or any of their properties, or any agreement or
instrument to which the Company or any such Significant Subsidiary
or, as the case may be, the Trust is a party or by which the
Company or any such Significant Subsidiary is bound or to which any
of the properties of the Company or any such Significant Subsidiary
or, as the case may be, the Trust is subject, or the charter or
by-laws of the Company or any such Significant Subsidiary, and the
Company or, as the case may be, the Trust have full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of
this Agreement).
(v) The Terms Agreement (including
the provisions of this Agreement) and, if the Offered Securities
are debt securities or Preferred Securities, any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company and the Trust.
(w) Except as described in
Section 2(u) hereof, neither the Company nor any of its
Significant Subsidiaries is in violation of any law, ordinance,
governmental rule, regulation, or court decree to which it or its
property or assets may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization necessary to the ownership of its property or to the
conduct of its business, except for any violation, default or event
which, individually or in the aggregate, will not have a Material
Adverse Effect.
(x) Except as disclosed in the
Disclosure Package and the Final Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties that, are
reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under the
relevant Indenture (if the Offered Securities are debt securities),
the Terms Agreement (including the provisions of this Agreement) or
any Delayed Delivery Contracts, or which are otherwise material in
the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the
Company’s knowledge, contemplated.
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(y) The audited financial statements
included or incorporated by reference in the most recent
Preliminary Prospectus and the Final Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash
flows for the periods shown, and, except as disclosed in the most
recent Preliminary Prospectus and the Final Prospectus, such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis; the unaudited financial statements included in the most
recent Preliminary Prospectus and the Final Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown and, except as disclosed in
the most recent Preliminary Prospectus and the Final Prospectus,
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis (except for the absence of notes),
subject to normally recurring changes resulting from year-end audit
adjustments and prepared in accordance with the instructions to SEC
Form 10-Q; any schedules included in the most recent Preliminary
Prospectus and the Final Prospectus present fairly the information
required to be stated therein; and if pro forma financial
statements are included in the most recent Preliminary Prospectus
and the Final Prospectus, the assumptions used in preparing the pro
forma financial statements included in the most recent Preliminary
Prospectus and the Final Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(z) Except as disclosed in the most
recent Preliminary Prospectus and the Final Prospectus, since the
date of the latest financial statements included in the Preliminary
Prospectus and the Final Prospectus there has been no material
adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the most recent Preliminary
Prospectus and the Final Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(aa) Neither the Company nor the
Trust is and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the most recent Preliminary Prospectus and the Final
Prospectus, will be an “investment company” as
defined in the Investment Company Act of 1940.
(bb) The Company or, as the case may
be, the Trust will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Offered Securities.
(cc) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in
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a violation by such Persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (collectively, the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company, its subsidiaries and, to the knowledge of the
Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith,
except, in each case, as would reasonably be expected to have
Material Adverse Effect.
(dd) Except as would not reasonably
be expected to have a Material Adverse Effect, the operations of
the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(ee) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department.
(ff) The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (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. The
Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its
subsidiaries are not aware of any material weakness in their
internal control over financial reporting.
(gg) The Company and its
subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act); such disclosure controls and procedures are
effective.
3. Purchase and Offering of
Offered Securities . The obligation of the Underwriters to
purchase the Offered Securities will be evidenced by an agreement
in writing or exchange of
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other written communications (the
“Terms Agreement” ) at each time the Company
and, as the case may be, the Trust determine to sell the Offered
Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein,
and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount or number of
shares to be purchased by each Underwriter, the purchase price to
be paid by the Underwriters and (if the Offered Securities are debt
securities or Preferred Securities) the terms of the Offered
Securities not already specified (in the relevant Indenture, in the
case of Offered Securities that are debt securities), including,
but not limited to, interest rate (if debt securities), dividend or
distribution rate (if Preferred Securities), maturity, any
redemption provisions and any sinking fund requirements and whether
any of the Offered Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not
later than seven full business days thereafter as the Underwriter
first named in the Terms Agreement (the “Lead
Underwriter” ) (the “Delivery Date” )
and the Company and, as the case may be, the Trust agree as the
time for payment and delivery, being herein and in the Terms
Agreement referred to as the “Closing Date” ),
the place of delivery and payment and any details of the terms of
public offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Securities. The
obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the
Underwriters propose to offer the Offered Securities for sale as
set forth in the Disclosure Package and the Final
Prospectus.
If specified in a Terms Agreement,
on the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein
set forth, the Company and, as the case may be, the Trust grant an
option to the several Underwriters to purchase, severally and not
jointly, up to that amount of the Option Securities as shall be
specified in the Terms Agreement from the Company and, as the case
may be, the Trust at the same price as the Underwriters shall pay
for the Offered Securities. Said option may be exercised only to
cover over allotments in the sale of the Offered Securities by the
Underwriters and may be exercised in whole or in part at any time
on or before the thirtieth day after the date of the Terms
Agreement upon written or telegraphic notice by the Representatives
to the Company and, as the case may be, the Trust setting forth the
amount of the Option Securities as to which the several
Underwriters are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is
purchasing of the Offered Securities, as adjusted by the
Representatives in such manner as the Representatives deem
advisable to avoid fractional shares/units.
If the Terms Agreement provides for
sales of Offered Securities pursuant to delayed delivery contracts,
the Company and, as the case may be, the Trust authorize the
Underwriters to solicit offers to purchase Offered Securities
pursuant to delayed delivery contracts substantially in the form of
Annex I attached hereto ( “Delayed Delivery
Contracts” ) with such changes therein as the Company
and, as the case may be, the Trust may authorize or approve.
Delayed Delivery Contracts are only to be with institutional
investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company and, as
the case may be, the Trust will pay, as compensation, to the
Representatives for the accounts of the Underwriters, the fee set
forth in such Terms Agreement in respect of the principal amount or
number of shares of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ( “Contract
Securities” ). The
11
Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery
Contracts. If the Company and, as the case may be, the Trust
execute and deliver Delayed Delivery Contracts, the Contract
Securities will be deducted from the Offered Securities to be
purchased by the several Underwriters and the aggregate principal
amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities set
forth opposite each Underwriter’s name in such Terms
Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and
so advises the Company and, as the case may be, the Trust. The
Company and, as the case may be, the Trust will advise the Lead
Underwriter not later than the business day prior to the Closing
Date of the principal amount or number of shares of Contract
Securities.
If the Offered Securities are debt
securities or Capital Securities and the Terms Agreement specifies
“Book-Entry Only” settlement or otherwise states
that the provisions of this paragraph shall apply, the Company and,
as the case may be, the Trust will deliver against payment of the
purchase price the Offered Securities in the form of one or more
permanent global securities in definitive form (the
“Global Securities” ) deposited with the Trustee
as custodian for The Depository Trust Company (
“DTC” ) or as otherwise provided in the Terms
Agreement and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global securities will
be held only in book-entry form through DTC, except in the limited
circumstances described in the most recent Preliminary Prospectus
and the Final Prospectus. Payment for the Offered Securities shall
be made by the Underwriters in Federal (same day) funds by official
check or checks or wire transfer to an account previously
designated by the Company and, as the case may be, the Trust at a
bank acceptable to the Lead Underwriter, in each case drawn to the
order of the Company at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the
Offered Securities.
4. Certain Agreements of the
Company . The Company and, as the case may be, the Trust agree
with the several Underwriters that they will furnish to counsel for
the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in
the form it became effective and of all amendments thereto and
that, in connection with each offering of Offered
Securities:
(a) The Company and, as the case may
be, the Trust will file the Final Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and if consented to by the Lead Underwriter,
subparagraph (5)) not later than the second business day
following the Execution Time.
(b) The Company and, as the case may
be, the Trust will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Preliminary Prospectus and the Final Prospectus and will afford the
Lead Underwriter a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company and, as the case
may be, the Trust will also advise the Lead Underwriter promptly of
the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and,
in the event of the issuance of any stop order, will use its best
efforts to obtain as soon as possible its lifting, including, if
necessary, by filing an amendment to the Registration Statement or
a new
12
registration statement and using its
best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(c) If, at any time when the Final
Prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter
or dealer (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), any event occurs as a result of
which the Final Prospectus as then supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made at such time not
misleading, or if it is necessary at any time to amend the
Registration Statement, file a new registration statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act, including in connection with the use or delivery of
the Final Prospectus, the Company and, as the case may be, the
Trust will (1) promptly notify the Lead Underwriter of such
event and (2) promptly prepare and file with the Commission,
at its own expense, an amendment or supplement or new registration
statement or with the consent of counsel to the underwriters, make
an appropriate filing pursuant to Section 13 or 14 of the
Exchange Act which will correct such statement or omission or an
amendment which will effect such compliance, (3) use its best
efforts to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in
order to avoid any disruption in use of the Final Prospectus and
(4) supply any supplemented Final Prospectus to the Lead
Underwriter in such quantities as the Lead Underwriter may
reasonably request. Neither the Lead Underwriter’s consent
to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) The Company and, as the case may
be, the Trust will prepare any material required to be filed by the
Company pursuant to Rule 433(d) under the Act and to file any such
materials within the applicable time periods prescribed for such
filings by Rule 433. To prepare a final term sheet, containing
solely a description of final terms of the Offered Securities and
the offering thereof, in a form approved by the Representatives and
attached as Schedule II hereto and to file such term sheet pursuant
to Rule 433(d) within the time required by such Rule.
(e) If, at any time prior to the
filing of a final prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made at such time not
misleading, the Company will (1) promptly notify the
Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented; (2) amend or supplement
the Disclosure Package to correct such statement or omission; and
(3) supply any amendment or supplement to the Representatives
in such quantities as the Representatives may reasonably
request.
(f) The Company agrees that, unless
it has obtained or will obtain the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to
the Offered Securities that would constitute an Issuer Free Writing
Prospectus
13
or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained
by the Company under Rule 433, other than the information contained
in the final term sheet prepared and filed pursuant to
Section 4(d) above; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule 1 to the Terms
Agreement and any electronic roadshow. Any such free
