Exhibit 1.1
EXECUTION
COPY
MICROSOFT
CORPORATION
Underwriting
Agreement
May 11, 2009
To the Representatives named in
Schedule I hereto
of the Underwriters named in Schedule II
hereto
Ladies and Gentlemen:
Microsoft Corporation, a corporation
incorporated in the State of Washington (the “ Company
”), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in
Schedule II hereto (the “ Underwriters
”), the principal amounts set forth in
Schedule II hereto of its debt securities identified on
Schedule I hereto (the “ Securities
”), to be issued under an indenture to be dated as of
May 18, 2009, as supplemented by a supplemental indenture
thereto dated as of May 18, 2009, and as further amended or
supplemented from time to time (the “ Indenture
”), between the Company and The Bank of New York Mellon Trust
Company, N.A., as Trustee (the “ Trustee ”). If
the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto,
then the terms “Underwriters” and
“Representatives” as used herein shall each be deemed
to refer to such firm or firms.
1. Representations, Warranties
and Agreements of the Company . The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Securities
Act ”), on Form S-3 (File No. 333-155495) in respect
of the Securities has been filed with the Securities and Exchange
Commission (the “ Commission ”) not earlier than
three years prior to the date of this Agreement; such registration
statement, and any post-effective amendment thereto, became
effective on filing; no stop order suspending the effectiveness of
such registration statement or any part thereof has been issued and
no proceeding for that purpose has been initiated or threatened by
the Commission, and no notice of objection of the Commission to the
use of such registration statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company; the various parts of such
registration statement, including all exhibits thereto (other than
the Statement of Eligibility and Qualification on Form T-1)
and including any prospectus supplement relating to the Securities
that is filed with the Commission pursuant to Rule 424(b) under the
Securities Act and deemed by Rule 430B under the Securities Act to
be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ”; the base prospectus filed as part of the
Registration Statement, in the form in which it was most recently
filed with the Commission prior to or on the date of this
Agreement, is hereinafter called the “ Base Prospectus
”; the final prospectus supplement to such prospectus
(including the Base Prospectus) relating to the Securities, in the
form filed or to be filed with the Commission pursuant to Rule
424(b) under the Securities Act, is hereinafter called the “
Prospectus ”; any preliminary
prospectus (including any
preliminary prospectus supplement) relating to the Securities, in
the form filed or to be filed with the Commission pursuant to Rule
424(b), is hereinafter called a “ Preliminary
Prospectus ”; the Base Prospectus, as amended or
supplemented immediately prior to the Applicable Time (as defined
in Section 1(e) hereof), including, without limitation, any
Preliminary Prospectus relating to the Securities, is hereinafter
called the “ Pricing Prospectus ”; any reference
in this Agreement to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein that were filed under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), or the Securities Act, as the case
may be, and the rules and regulations of the Commission thereunder,
on or before the date of this Agreement or the issue date of any
such prospectus; any reference to “amend,”
“amendment,” “supplement” or similar terms
with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed under the Exchange Act or the Securities Act, as the case may
be, after the date of this Agreement or the issue date of any such
prospectus which are deemed to be incorporated by reference
therein; and any “issuer free writing prospectus” (as
defined in Rule 433 under the Securities Act) relating to the
Securities that (x) is required to be filed with the
Commission by the Company or (y) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of
the Securities or the offering that does not reflect the final
terms is hereinafter called an “ Issuer Free Writing
Prospectus ”;
(b) The documents incorporated by
reference in the Registration Statement, the Pricing Prospectus and
the Prospectus, when they were filed with the Commission or became
effective, as the case may be, conformed in all material respects
to the requirements of the Exchange Act or the Securities Act, as
the case may be, and the rules and regulations of the Commission
thereunder; none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, the Pricing Prospectus and
the Prospectus, when such documents are filed with the Commission
or become effective, as the case may be, will conform in all
material respects to the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations of the
Commission thereunder 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; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made therein in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein;
(c) The Registration Statement, any
Preliminary Prospectus and the Pricing Prospectus conform, and the
Prospectus and any post-effective amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects, to the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”), and the rules and regulations of the
Commission thereunder; and (i) the Registration Statement and
any amendment thereto, as of their
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applicable effective dates relating
to the Securities, did not and will not contain any untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) any Preliminary Prospectus, the
Pricing Prospectus, the Prospectus and any amendment or supplement
thereto, as of their issue dates, did not and 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 and (iii) the Prospectus and the Prospectus as
amended or supplemented, if applicable, at the Time of Delivery (as
defined in Section 2 hereof), will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made
therein in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d) The Company has been, and
continues to be, a “well-known seasoned issuer” (as
defined in Rule 405 under the Securities Act), and has not been,
and continues not to be, an “ineligible issuer” (as
such term is defined in Rule 405 under the Securities Act), in each
case as from 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) under the Securities Act) of the Securities;
(e) As used herein, the “
Disclosure Package ” means, collectively, (i) the
Pricing Prospectus, (ii) the Final Term Sheet prepared and
filed pursuant to Section 5(b) hereof and (iii) any other
Issuer Free Writing Prospectus that is identified on Schedule
III hereto; and the “ Applicable Time ”
means 5:00 p.m. (New York City time) on the date of this Agreement.
The Disclosure Package, as of the Applicable Time, 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; and each Issuer Free Writing Prospectus identified on
Schedule III hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus; provided, however , that this representation
and warranty shall not apply to statements or omissions made
therein in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(f) The Company has not made, and,
without the prior written consent of the Representatives, will not
make, any offer relating to the Securities that would constitute an
“issuer free writing prospectus” (as defined in Rule
433 under the Securities Act) required to be filed by the Company
with the Commission or retained by the Company pursuant to Rule 433
under the Securities Act; provided, however , that the prior
written consent of the Representatives shall be deemed to have been
given with respect to the Issuer Free Writing Prospectuses
identified on Schedule III hereto; and the Company has
complied, and will comply, with the requirements of Rule 433 under
the Securities Act applicable to any such Issuer Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record-keeping;
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(g) The Company has been duly
incorporated and is validly existing as a corporation under the
laws of the State of Washington, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Disclosure Package and the
Prospectus;
(h) The Securities have been duly
authorized and, when authenticated in accordance with the Indenture
and issued and delivered pursuant to this Agreement, will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization
and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding
in equity or at law);
(i) The Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and,
when executed and delivered by the Company and the Trustee, at the
Time of Delivery, will constitute, a valid and legally binding
instrument of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws
of general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether
enforceability is considered in a proceeding in equity or at law);
and
(j) The Indenture conforms, and the
Securities will conform, to the descriptions thereof contained in
the Disclosure Package and the Prospectus.
2. Purchase and Sale of
Securities . Subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase prices
set forth in Schedule I hereto the principal amounts of
Securities set forth opposite the name of such Underwriter in
Schedule II hereto.
The Securities to be purchased by
each Underwriter hereunder will be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of federal (same-day)
funds, at the office of Weil, Gotshal & Manges LLP, at
9:30 a.m. (New York City time) on May 18, 2009, or at such
other time and date (not later than the fifth business day
thereafter) as the Representatives and the Company may agree upon
in writing, such time and date being herein called the “
Time of Delivery .” The Securities will be delivered
by the Company to the Representatives in the form of global
Securities, representing all of the Securities, which will be
deposited by the Representatives on behalf of the Underwriters with
The Depository Trust Company, or its nominee, for credit to the
respective accounts of the Underwriters.
3. Offer and Sale of Securities
by the Underwriters . Upon the authorization by the
Representatives of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Disclosure Package and the
Prospectus.
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4. Representations, Warranties
and Agreements of the Underwriters . (a) Each Underwriter,
severally and not jointly, represents and warrants to, and agrees
with, the Company that it and each of its affiliates have complied,
and will comply, with the selling restrictions applicable to offers
and sales of Securities in jurisdictions outside the United States
as set forth in Schedule VII hereto. Each Underwriter, on
behalf of itself and each of its affiliates, severally and not
jointly, represents and warrants to, and agrees with, the Company
that it and each such affiliate have not offered, sold, purchased
or delivered, and will not offer, sell, purchase or deliver,
directly or indirectly, any of the Securities or distribute any
offering material in relation thereto in any jurisdiction outside
the United States except under circumstances that will, to the best
of its or such affiliate’s knowledge, result in compliance
with the applicable laws and regulations thereof. In the event that
the offer or sale of the Securities by an Underwriter in a
jurisdiction outside the United States requires any action on the
part of the Company in or with respect to such jurisdiction, such
Underwriter agrees with the Company that it will use its
commercially reasonable efforts to assist the Company in complying
with such requirements.
(b) Each Underwriter, severally and
not jointly, represents and warrants to, and agrees with, the
Company and the Representatives that it has not made, and unless it
obtains the prior written consent of the Company and the
Representatives, it will not make, any offer relating to the
Securities that would constitute an “issuer free writing
prospectus” (as defined in Rule 433 under the Securities Act)
or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 under the Securities Act)
required to be filed with the Commission; provided, however
, that the prior written consent of the Company shall be deemed to
have been given with respect to the Issuer Free Writing
Prospectuses identified on Schedule III hereto. The Company
represents that it has treated or agrees that it will treat any
such issuer free writing prospectus or free writing prospectus to
which it so consents as an Issuer Free Writing Prospectus, and has
complied and will comply with the requirements of Rule 433
applicable thereto, including with respect to timely filing with
the Commission, legending and record-keeping.
5. Further Agreements of the
Company . The Company agrees with each of the
Underwriters:
(a) To prepare the Prospectus in a
form reasonably approved by the Representatives and to file the
Prospectus pursuant to Rule 424(b) under the Securities Act no
later than the Commission’s close of business on the second
business day following the date of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b);
and to make no further amendment or supplement to the Registration
Statement, the Pricing Prospectus or the Prospectus after the date
of this Agreement and prior to the Time of Delivery which shall be
reasonably disapproved by the Representatives promptly after
reasonable notice thereof unless in the opinion of counsel for the
Company such amendment or supplement is required by law;
provided, however , that in the case of any periodic filing
to be filed by the Company with the
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Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act during such period,
the Company shall furnish to the Representatives a draft of any
such filing for review by the Representatives prior to filing with
the Commission and shall discuss any reasonable comments that the
Representatives may have with respect to such draft prior to
filing;
(b) To prepare a final term sheet
(the “ Final Term Sheet ”) reflecting the final
terms of the Securities, substantially in the form of Schedule
IV hereto, and to file such Final Term Sheet as an
“issuer free writing prospectus” pursuant to Rule 433
under the Securities Act prior to the close of business two
business days after the date of this Agreement; provided,
however , that the Company shall furnish the Representatives
with copies of the Final Term Sheet prior to such proposed filing
and shall not use or file any such document which shall be
disapproved by the Representatives; and to file promptly any other
Issuer Free Writing Prospectus or other material required to be
filed by the Company with the Commission pursuant to Rule 433 under
the Securities Act in accordance with Section 1(f)
hereof;
(c) To file promptly all reports and
any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) is required in connection with the offering or sale
of the Securities (the “ prospectus delivery period
”); and, during the prospectus delivery period, to advise the
Representatives, promptly after it receives notice thereof, of
(i) the time when any post-effective amendment to the
Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus or any amended Prospectus
has been filed with the Commission (provided that no such
notification need be given in connection with any such amendment or
supplement consisting of a document filed by the Company with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act subsequent to the Time of Delivery unless the Representatives
have advised the Company that the Underwriters have not completed
the distribution of the Securities), (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of any order suspending or preventing the
use of any prospectus relating to the Securities or any Issuer Free
Writing Prospectus, or of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act, (iii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iv) the
initiation or threatening of any proceeding for the purpose of any
of the foregoing or (v) any request by the Commission for the
amending or supplementing of the Registration Statement or of the
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or any such order preventing or
suspending the use of any Preliminary Prospectus or other
prospectus relating to the Securities or any Issuer Free Writing
Prospectus or suspending any such qualification, or of any such
notice of objection pursuant to Rule 401(g)(2) under the Securities
Act, to use promptly its reasonable best efforts to obtain the
withdrawal of such order; and, in the event of any such issuance of
a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary
to permit offers and sales of the Securities by the Underwriters
(references herein to the “Registration Statement”
shall include any such amendment or new registration
statement);
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(d) To take such action as the
Representatives may reasonably request to qualify the Securities
for offer and sale under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution or sale of the Securities; provided ,
however , that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(e) To furnish each Underwriter with
one copy of the Registration Statement and, during the prospectus
delivery period referred to in Section 5(c) hereof, to furnish
the Underwriters with copies of the Disclosure Package and the
Prospectus in New York City in such quantities as the
Representatives may reasonably request (excluding, in each case,
any documents incorporated by reference therein to the extent
available through the Commission’s EDGAR system);
(f) If, during the prospectus
delivery period referred to in Section 5(c) hereof, any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an 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 when such Prospectus is delivered, not
misleading or, if for any other reason it shall be necessary in the
opinion of counsel for the Company during such prospectus delivery
period to amend or supplement the Prospectus or to file with the
Commission any document incorporated by reference in the Prospectus
in order to comply with the Securities Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and prepare and
file such document and to furnish without charge to each
Underwriter as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance;
(g) To make generally available to
its securityholders as soon as practicable, but in any event not
later than 18 months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an
earning statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158);
(h) During the period beginning from
the date of this Agreement and continuing to and including the Time
of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Securities without
the prior written consent of the Representatives; and
(i) To pay the Commission the
required filing fees relating to the Securities within the time
period required by
Rule 456(b)(1) under the Securities Act.
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6. Payment of Expenses . The
Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of counsel for the Company and the
Company’s independent registered public accounting firm in
connection with the registration of the Securities under the
Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus
and the Prospectus and amendments and supplements thereto, and any
Issuer Free Writing Prospectus, and the mailing and delivering of
copies thereof to the Underwriters and dealers and any
out-of-pocket costs associated with electronic delivery of any of
the foregoing by the Underwriters to investors; (ii) all
expenses in connection with the qualification of the Securities for
offer and sale under state securities laws as provided in
Section 5(d) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal
investment memoranda (not to exceed $5,000); (iii) any fees
charged by securities rating services for rating the Securities;
(iv) the cost of preparing the Securities; (v) the fees
and expenses of the Trustee and any agent of the Trustee and the
reasonable fees and disbursements of counsel for the Trustee and
any such agent in connection with the Indenture and the Securities;
and (vi) all other costs and expenses incident to the
performance of the Company’s obligations hereunder which are
not otherwise specifically provided for in this Section 6. It
is understood, however, that, except as provided in this
Section 6 and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, any transfer taxes on resale
of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. Conditions of
Underwriters’ Obligation . The obligations of the
Underwriters hereunder shall be subject, in the discretion of the
Representatives, to (i) the condition that all representations
and warranties of the Company herein are as of the Time of Delivery
true and correct, (ii) the condition that the Company shall
have performed all of its obligations hereunder theretofore to be
performed and (iii) the following additional
conditions:
(a) Any Preliminary Prospectus and
the Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Securities Act within the applicable time
period prescribed for each such filing by the rules and regulations
under the Securities Act and in accordance with Section 5(a)
hereof; and the Final Term Sheet provided for in Section 5(b)
hereof and any other Issuer Free Writing Prospectus relating to the
Securities shall have been filed with the Commission pursuant to
Rule 433 under the Securities Act within the applicable time period
prescribed for such filing by Rule 433 and in accordance with
Section 5(b) hereof (unless such Issuer Free Writing
Prospectus is not required to be filed with the Commission pursuant
to Rule 433(d)(5)(i));
(b) No stop order suspending the
effectiveness of the Registration Statement or any part thereof or
suspending or preventing the use of the Prospectus or any Issuer
Free Writing Prospectus shall have been issued, and no proceeding
for that purpose shall have been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act shall
have been received;
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(c) Keith R. Dolliver, Esq.,
Associate General Counsel, Legal and Corporate Affairs, and
Assistant Secretary of the Company, shall have furnished to the
Representatives his written opinion, dated the Time of Delivery, in
form and substance substantially in the form set forth in
Schedule V hereto;
(d) Simpson Thacher &
Bartlett LLP, counsel for the Company, shall have furnished to the
Representatives their written opinion and negative assurance
letter, dated the Time of Delivery, in form and substance
substantially in the form set forth in Schedule VI
hereto;
(e) Weil, Gotshal & Manges
LLP, counsel for the Underwriters, shall have furnished to the
Representatives their written opinion and negative assurance
letter, dated the Time of Delivery, with respect to the
incorporation of the Company, the validity of the Indenture and the
Securities, the Registration Statement, the Disclosure Package, the
Prospectus, and other related matters as the Representatives may
reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable
them to pass upon such matters;
(f) At the Time of Delivery,
Deloitte & Touche LLP shall have furnished to the
Representatives a “comfort” letter or letters, dated
the Time of Delivery, as to such matters as the Representatives may
reasonably request and in form and substance reasonably
satisfactory to the Representatives (which comfort letter or
letters shall, as applicable, be substantially consistent with
drafts provided by Deloitte & Touche LLP to the
Representatives prior to or on the date of this Agreement or
comfort letters previously delivered in respect of offerings of
debt securities by the Company);
(g) Since the respective dates as of
which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, there shall not have been a
material adverse change in the business, financial condition or
results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the
Disclosure Package and the Prospectus (excluding any amendment or
supplement thereto), the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in
the Disclosure Package and the Prospectus;
(h) On or after the date of this
Agreement there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading of any securities
issued by the Company; (iii) a general moratorium on
commercial banking activities declared by either Federal or New
York State authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis affecting the financial
markets of the United States, if the effect of any such event
specified in clause (iv) or (v) in the reasonable
judgment of the Representatives makes it impractical or inadvisable
to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Disclosure Package and the Prospectus;
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(i) On or after the date of this
Agreement and prior to the Time of Delivery (i) no downgrading
shall have occurred in the rating assigned to the Company’s
debt securities by Standard and Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc., or Moody’s
Investors Service, Inc. and (ii) neither of these rating
organizations shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of the Company’s debt securities, the effect of which,
in any event specified in clause (i) or (ii), in the
reasonable judgment of the Representatives, makes it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in
the Disclosure Package and the Prospectus; and
(j) The Company shall have furnished
or caused to be furnished to the Representatives at the Time of
Delivery a certificate of the Company signed by an officer of the
Company reasonably satisfactory to the Representatives as to
(i) the accuracy of the representations and warranties of the
Company herein as of the Time of Delivery, (ii) the
performance by the Company of all of its obligations hereunder to
be performed at or prior to the Time of Delivery and (iii) the
matters set forth in Sections 7(b) and
7(g) hereof.
8. Indemnification and
Contribution . (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement, or any amendment thereto, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact contained in the
Base Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto,
the Disclosure Package, or any “issuer free writing
prospectus” (as defined in Rule 433(d) under the Securities
Act) relating to the offering of the Securities, or any omission or
alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided
, however , that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any
amendment or supplement thereto, the Disclosure Package, or any
such issuer free writing prospectus, made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use
therein.
10
(b) Each Underwriter will, severally
and not jointly, indemnify and hold harmless the Company to the
same extent as the indemnity set forth in Section 8(a) hereof,
but only insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of, or omission or
alleged omission to state, a material fact made in reliance upon
and in conformity with written information furnished to the Company
by such Underwriter through the Representatives expressly for use
therein, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an
indemnified party under Section 8(a) or 8(b) hereof of notice
of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying
party under such Section 8(a) or 8(b), as the case may be,
notify the indemnifying party in writing of the commencement
t
