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Exhibit 1.1
PILGRIM’S PRIDE
CORPORATION
(a Delaware
corporation)
7,500,000 Shares
Common Stock
UNDERWRITING
AGREEMENT
Dated: May 12, 2008
PILGRIM’S PRIDE
CORPORATION
(a Delaware
corporation)
7,500,000 Shares
Common Stock
UNDERWRITING
AGREEMENT
May 12, 2008
L EHMAN B
ROTHERS I NC .
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Pilgrim’s Pride
Corporation, a Delaware corporation (the “ Company
”), proposes to issue and sell to Lehman Brothers Inc. (the
“ Underwriter ”) 7,500,000 shares (the “
Stock ”) of the Company’s common stock, par
value $.01 per share (the “ Common Stock ”).
This agreement (this “ Agreement ”) is to
confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriter.
SECTION 1. Representations
and Warranties .
(a) Representations and
Warranties by the Company . The Company represents and warrants
to the Underwriter, and agrees with the Underwriter, as
follows:
(i) Registration
Statement; Certain Terms . An “automatic shelf
registration statement” (as defined in Rule 405 under
the Securities Act of 1933, as amended (the “ 1933 Act
”)) on Form S-3 in respect of the Stock (File
No. 333-130113) (i) has been prepared by the Company in
conformity with the requirements of the 1933 Act, and the rules and
regulations (the “ 1933 Act Regulations ”) of
the Securities and Exchange Commission (the “
Commission ”) thereunder, (ii) has been filed
with the Commission under the 1933 Act not earlier than the date
that is three years prior to the Closing Time (as defined in
Section 3 hereof) and (iii) upon its filing with the
Commission, automatically became and is effective under the 1933
Act. Copies of such registration statement, including any amendment
thereto (excluding exhibits to such registration statement but
including all documents incorporated by reference in each
prospectus contained therein), have been delivered by the Company
to the Underwriter. For purposes of this Agreement, the following
terms have the specified meanings:
“ Applicable
Time ” means 8:30 a.m. (New York City time) on the day
after the date of this Agreement;
“ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been amended on or prior to the date hereof, relating to
the Stock;
“ Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time and the orally conveyed pricing information, in
each case, as identified on Schedule A hereto, other than a
road show that is an Issuer Free Writing Prospectus under Rule 433
of the 1933 Act Regulations;
“ Effective Date
” means any date as of which any part of the Registration
Statement or any post-effective amendment thereto relating to the
Stock became, or is deemed to have become, effective under the 1933
Act in accordance with the 1933 Act Regulations (including pursuant
to Rule 430B of the 1933 Act Regulations);
“ Issuer Free
Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the 1933 Act
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
“ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Stock, including the Base Prospectus and any preliminary
prospectus supplement thereto, included in the Registration
Statement or as filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations and provided to the
Underwriter for use by the Underwriter;
“ Prospectus
” means the final prospectus relating to the Stock, including
the Base Prospectus and the final prospectus supplement thereto
relating to the Stock, as hereafter filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations and provided to
the Underwriter for use by the Underwriter; and
“ Registration
Statement ” means, collectively, the various parts of the
above-referenced registration statement, each as amended as of the
Effective Date for such part, including any Preliminary Prospectus
or the Prospectus and all exhibits to such registration
statement.
Any reference to the
“most recent Preliminary Prospectus” will be deemed to
refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) of the
1933 Act Regulations prior to or on the date hereof (including, for
purposes of this Agreement, any documents incorporated by reference
therein prior to or on the date of this Agreement). Any reference
to any Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under the 1933 Act as of the date of
such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus will be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934, as
amended (the “ 1934 Act ”) and the rules and
regulations (the “ 1934 Act Regulations ”) of
the Commission thereunder, after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the
Registration Statement will be deemed to include any annual report
of the Company on Form 10-K filed with the Commission pursuant to
Section 13(a) or 15(d) of the 1934 Act after the Effective
Date that is incorporated by reference in the Registration
Statement.
(ii) Compliance with
Registration Requirements .
(1) The Company has not
received any notice that the Commission has issued any order
preventing or suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary
Prospectus, any Issuer
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Free Writing Prospectus or
the Prospectus or that any proceeding for any such purpose or
pursuant to Section 8A of the 1933 Act against the Company or
related to the offering has been instituted or threatened by the
Commission. The Company has not received any notice that the
Commission has issued any order directed to any document
incorporated by reference in the most recent Preliminary Prospectus
or the Prospectus or that any proceeding has been instituted or
threatened by the Commission with respect to any document
incorporated by reference in the most recent Preliminary Prospectus
or to be incorporated by reference in the Prospectus. The Company
has not received any notice of any objection by the Commission to
the use of the form of the Registration Statement.
(2) The Company has been, and
continues to be, a “well-known seasoned issuer” (as
defined in Rule 405 of the 1933 Act Regulations) and has not been,
and continues not to be, an “ineligible issuer” (as
defined in Rule 405 of the 1933 Act Regulations), in each case at
all times since the filing of the Registration
Statement.
(3) The Registration
Statement conformed on the Effective Date and conforms, and any
amendment to the Registration Statement filed after the date hereof
will conform, in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations. The most recent Preliminary
Prospectus conforms on the date hereof, and the Prospectus, and any
amendment or supplement thereto, will conform as of its date and as
of the Closing Time, in all material respects to the requirements
of the 1933 Act and the 1933 Act Regulations. The documents
incorporated by reference in the most recent Preliminary
Prospectus, when they were filed with the Commission, conformed in
all material respects, to the requirements of the 1934 Act and the
1934 Act Regulations, and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents are filed with
the Commission, will conform, in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations; and no
such documents have been filed with the Commission since the close
of business of the Commission on the business day immediately prior
to the date hereof.
(4) The Registration
Statement does not, as of the Effective Date, 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; provided, however, that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement in reliance upon and in conformity with
written information furnished to the Company by the Underwriter
specifically for inclusion therein (which information is specified
in Section 12 hereof).
(5) The Disclosure Package
did not, as of the Applicable Time, 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, in the
light of the circumstances under which they were made, not
misleading; provided, however, that no representation or warranty
is made as to information contained in or omitted from the
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for inclusion therein (which information is specified
in Section 12 hereof).
(6) The Prospectus, and any
amendment or supplement thereto, will not, as of its date and at
the Closing Time, 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
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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 information contained in or omitted from the
Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for inclusion therein (which information is specified
in Section 12 hereof).
(7) The documents
incorporated by reference in any Preliminary Prospectus did not,
any further documents incorporated by reference therein will not,
when filed with the Commission, and any documents incorporated by
reference in the Prospectus will not, when filed with the
Commission, 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, in the light of the
circumstances under which they were made, not
misleading.
(iii) Good Standing of the
Company and its Subsidiaries . Each of the Company and its
subsidiaries is a corporation, limited liability company, limited
partnership or business trust that has been duly formed, is validly
existing and in good standing under the laws of its jurisdiction of
organization and has the power and authority to carry on its
business as described in the Prospectus and to own, lease and
operate its properties, and each is duly qualified and is in good
standing as a foreign corporation, limited partnership or business
trust authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(iv) Capitalization .
All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted
or issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any
ownership interest in the Company or any of its subsidiaries,
except as otherwise disclosed in the Registration
Statement.
(v) Subsidiaries . The
entities listed on Schedule B hereto are the only material
subsidiaries, direct or indirect, of the Company in which the
Company controls greater than 50% of the voting power of such
entity. All of the outstanding shares of capital stock, limited
liability company or partnership interests or other ownership
interests, as applicable, of each of the Company’s
subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company,
directly or indirectly (except as set forth on
Schedule B hereto) through one or more subsidiaries,
free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature (each, a “ Lien
”), except as disclosed in the Disclosure Package.
(vi) No Violation .
Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in
any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or
their respective property is bound.
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(vii) No Conflicts .
The execution, delivery and performance of this Agreement, the
compliance by the Company with all the provisions hereof, the
consummation of the transactions contemplated hereby and the
application of the proceeds from the sale of the Stock as described
under “Use of Proceeds” in the Disclosure Package will
not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency having jurisdiction over the Company or its subsidiaries
(except (x) such as may be required under the securities or
Blue Sky laws of the various states or (y) any consent under
the 1933 Act which has already been obtained), (ii) conflict
with or constitute a breach of any of the terms or provisions of,
or a default under, (A) the charter or by-laws of the Company
or any of its subsidiaries or (B) any indenture, loan
agreement, mortgage, lease 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 or their respective property
is bound except for breaches or defaults that would not be material
to the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole,
(iii) (assuming compliance with all applicable state
securities or Blue Sky laws, rules and regulations) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its subsidiaries or
their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien under
any 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 or their respective property is bound or
(v) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or any of its
subsidiaries or any other impairment of the rights of the holder of
any such Authorization.
(viii) Absence of
Proceedings . There are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are
not so described as required; nor are there any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not so
described or filed as required.
(ix) No Violation of
Certain Laws . Neither the Company nor any of its subsidiaries
has violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”), any
provisions of the Employee Retirement Income Security Act of 1974,
as amended, or any provisions of the Foreign Corrupt Practices Act
or the rules and regulations promulgated thereunder, except for
such violations which, singly or in the aggregate, would not have a
material adverse effect on the business, prospects, financial
condition or results of operation of the Company and its
subsidiaries, taken as a whole.
(x) Possession of Licenses
and Permits . Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations
and other approvals (each, an “ Authorization ”)
of, and has made all filings with and notices to, all governmental
or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under
any applicable Environmental Laws, as are necessary to own, lease,
license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization
or to make any such filing or notice would not, singly or in the
aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole. Each such
Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is
5
in compliance with all the
terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the
holder of any such Authorization; and such Authorizations contain
no restrictions that are burdensome to the Company or any of its
subsidiaries; except where such failure to be valid and in full
force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(xi) Environmental
Clean-Up Costs . There are no costs or liabilities associated
with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(xii) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(xiii) Authorization of
Stock . The shares of the Stock to be issued and sold by the
Company to the Underwriter hereunder have been duly authorized and,
upon payment and delivery in accordance with this Agreement, will
be validly issued, fully paid and non-assessable, will conform to
the description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus and will be free and
clear of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights or any other
Liens.
(xiv) Title to
Property . Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries considered as a whole, the Company and its
subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal
property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all
Liens and defects; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its subsidiaries, in each case except as described in the
Prospectus.
(xv) Insurance .
Except as otherwise set forth in the Prospectus, the Company and
each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; and neither the Company nor any of its
subsidiaries (i) has received notice from any insurer or agent
of such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue
such insurance or (ii) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers at a cost that would not have a material adverse effect on
the business, prospects, financial conditions or results of
operations of the Company and its subsidiaries, taken as a
whole.
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(xvi) Independent
Accountants . Ernst & Young LLP are independent public
accountants with respect to the Company and its subsidiaries as
required by the 1933 Act.
(xvii) Financial
Statements . The consolidated financial statements included (or
otherwise incorporated by reference) in the Registration Statement
and the Disclosure Package (and any amendment or supplement
thereto), together with related schedules and notes, present fairly
in all material respects the consolidated financial position,
results of operations and changes in financial position of the
Company and its subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and
the most recent Preliminary Prospectus (and any amendment or
supplement thereto) and to be set forth in the Prospectus are or
will be, as applicable, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(xviii) Investment Company
Act . The Company is not and, after giving effect to the
offering and sale of the Stock, will not be, an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(xix) No Other
Registration Rights . 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 1933 Act with respect to any securities of the
Company or to require the Company to include such securities with
the Stock registered pursuant to the Registration
Statement.
(xx) No Adverse
Reports . Except as publicly disclosed by Moody’s or
S&P before the date of this Agreement, no “nationally
recognized statistical rating organization” as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act has
indicated to the Company that it is considering (i) the
downgrading, suspension or withdrawal of, or any review for a
possible change that does not indicate the direction of the
possible change in, any rating assigned to the Company or any
securities of the Company or (ii) any change in the outlook
for any rating of the Company or any securities of the
Company.
(xxi) No Material Adverse
Change in Business . Since the respective dates as of which
information is given in the Disclosure Package other than as set
forth in the Disclosure Package (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company
or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(xxii) Internal
Controls .
(1) The Company and each of
its subsidiaries (i) make and keep accurate books and records
and (ii) maintain and have maintained a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are
7
executed in accordance with
management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit
preparation of the Company’s financial statements in
conformity with accounting principles generally accepted in the
United States and to maintain accountability for its assets,
(C) access to the Company’s assets is permitted only in
accordance with management’s general or specific
authorization and (D) the recorded accountability for the
Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(2) (i) The Company and each
of its subsidiaries have established and maintain disclosure
controls and procedures (as such term is defined in Rule 13a-15
under the 1934 Act), (ii) such disclosure controls and
procedures are designed to ensure that the information required to
be disclosed by the Company and its subsidiaries in the reports
they file or submit under the 1934 Act is accumulated and
communicated to the management of the Company and its subsidiaries,
including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely
decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were
established.
(3) Since the date of the
most recent balance sheet of the Company and its consolidated
subsidiaries reviewed or audited by Ernst & Young LLP,
(i) the Company has not been advised of (A) any
significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Company and
each of its subsidiaries to record, process, summarize and report
financial data, or any material weaknesses in internal controls or
(B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and
(ii) since that date, there have been no significant changes
in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material
weaknesses.
(xxiii) Absence of
Manipulation . Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed to or which
has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Stock.
(xxiv) Money Laundering
Laws . The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance in all material
respects 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
applicable 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 ”), 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, nor has the Company received any notice that any such
action, suit or proceeding against the Company is
threatened.
(xxv) OFAC . 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
8
subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
For purposes of this
Section 1, as well as for Section 6 hereof, references to
“the most recent Preliminary Prospectus and the
Prospectus” or “the Disclosure Package and the
Prospectus” are to each of the most recent Preliminary
Prospectus or the Disclosure Package, as the case may be, and the
Prospectus as separate or stand-alone documentation (and not the
most recent Preliminary Prospectus or the Disclosure Package, as
the case may be, and the Prospectus taken together), so that
representations, warranties, agreements, conditions and legal
opinions will be made, given or measured independently in respect
of each of the most recent Preliminary Prospectus or the Disclosure
Package, as the case may be, and the Prospectus.
(b) Officer’s
Certificates . Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriter or
to counsel for the Underwriter shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters
covered thereby.
SECTION 2. Purchase of
Stock by Underwriter . On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the
Company, the Stock. The Underwriter shall purchase such Stock at a
price of $23.65 per share (the “ Purchase Price
”).
SECTION 3. Delivery of and
Payment for Stock . Payment of the Purchase Price for, and
delivery of, the Stock shall be made at the offices of Weil,
Gotshal & Manges LLP, 200 Crescent Court, Suite 300,
Dallas, Texas 75201, or at such other place as shall be agreed upon
by the Underwriter and the Company, at 9:00 A.M. (Central time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern
time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as
shall be agreed upon by the Underwriter and the Company (such time
and date of payment and delivery being herein called the “
Closing Time ”).
Delivery of the Stock shall
be made to the Underwriter against payment by the Underwriter of
the Purchase Price of the Stock being sold by the Company to or
upon the order of the Company by wire transfer in immediately
available funds to the account specified by the Company. Time shall
be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation
of the Underwriter hereunder. The Company shall deliver the Stock
through the facilities of DTC unless the Underwriter shall
otherwise instruct.
SECTION 4. Covenants of
the Company . The Company covenants and agrees with the
Underwriter as follows:
(a) Compliance with
Securities Regulations. The Company (i) will prepare the
Prospectus in a form approved by the Underwriter and file the
Prospectus pursuant to Rule 424(b) of the 1933 Act Regulations
within the time period prescribed by such Rule; (ii) will not
file any amendment or supplement to the Registration Statement or
the Prospectus or file any document under the 1934 Act before the
termination of the offering of the Stock by the Underwriter if such
document would be deemed to be incorporated by reference into the
Prospectus, which filing is not consented to by the Underwriter
after reasonable notice thereof (such consent not to be
unreasonably withheld or delayed); (iii) will advise the
Underwriter, promptly after it receives notice thereof, of the time
when any amendment or supplement
9
to the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus has been filed and
will furnish the Underwriter with copies thereof; (iv) will
advise the Underwriter, promptly after it receives notice thereof,
of the issuance by the Commission or any state or other regulatory
body of any stop order or any order suspending the effectiveness of
the Registration Statement, suspending or preventing the use of any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or suspending the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceedings for any such purpose or pursuant to
Section 8A of the 1933 Act, of receipt by the Company from the
Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto or
of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; and (v) will
use its reasonable best efforts to prevent the issuance of any stop
order or other such order or any such notice of objection and, if a
stop order or other such order is issued or any such notice of
objection is received, to obtain as soon as possible the lifting or
withdrawal thereof.
(b) Filing of
Amendments. The Company will prepare and file with the
Commission, promptly upon the request of the Underwriter, any
amendments or supplements to the Registration Statement, the
Disclosure Package or the Prospectus which, in the good faith
opinion of the Underwriter, may be necessary or advisable in
connection with the offering of the Stock.
(c) Delivery of
Registration Statements and Prospectuses. The Company will
furnish to the Underwriter and to counsel for the Underwriter such
number of conformed copies of the Registration Statement, as
originally filed and each amendment thereto (excluding exhibits
other than this Agreement), any Preliminary Prospectus, any Issuer
Free Writing Prospectus, the Prospectus and all amendments and
supplements to any of such documents (including any document filed
under the 1934 Act and deemed to be incorporated by reference in
the Registration Statement, any Preliminary Prospectus or the
Prospectus), in each case as soon as available and in such
quantities as the Underwriter may from time to time reasonably
request.
(d) Continued Compliance
with Securities Laws. During the period in which the Prospectus
relating to the Stock (or in lieu thereof, the notice referred to
in Rule 173(a) of the 1933 Act Regulations) is required to be
delivered under the 1933 Act, the Company will comply with all
requirements imposed upon it by the 1933 Act and by the 1933 Act
Regulations, as from time to time in force, so far as is necessary
to permit the continuance of sales of or dealings in the Stock as
contemplated by the provisions of this Agreement and by the
Prospectus. If during such period any event occurs as a result of
which the Disclosure Package or the Prospectus as then amended or
supplemented would include an 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 then existing, not
misleading, or if during such period it is necessary to amend the
Registration Statement or amend or supplement the Disclosure
Package or the Prospectus or file any document to comply with the
1933 Act, the Company will promptly notify the Underwriter and
will, subject to Section 4(a) hereof, amend the Registration
Statement, amend or supplement the Disclosure Package or the
Prospectus, as the case may be, or file any document (in each case,
at the expense of the Company) so as to correct such statement or
omission or to effect such compliance, and will furnish without
charge to the Underwriter as many written and electronic copies of
any such amendment or supplement as the Underwriter may from time
to time reasonably request.
(e) Rule 158. As soon
as practicable, the Company will make generally available to its
security holders and the Underwriter an earnings statement
satisfying the requirements of Section 11(a) of the 1933 Act
and Rule 158 of the 1933 Act Regulations.
(f) Payment of
Expenses. The Company agrees, whether or not this Agreement is
terminated or the sale of the Stock to the Underwriter is
consummated, to pay all fees, expenses, costs and charges
in
10
connection with: (i) the
preparation, printing, filing, registration, delivery and shipping
of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus and any amendments or supplements thereto; (ii) the
printing, producing, copying and delivering this Agreement, closing
documents (including any compilations thereof) and any other
agreements, memoranda, correspondence and other documents printed
and delivered in connection with the offering, purchase, sale and
delivery of the Stock; (iii) the services of the
Company’s independent registered public accounting firm;
(iv) the services of the Company’s counsel; (v) the
qualification of the Stock under the securities laws of the several
jurisdictions as provided in Section 4(l) hereof and the
preparation, printing and distribution of a Blue Sky Memorandum
(including the related reasonable fees and expenses of counsel to
the Underwriter); (vi) any required review by the Financial
Industry Regulatory Authority of the terms of the sale of the Stock
(including related fees and expenses of counsel to the
Underwriter); (vii) the listing of the Stock on the New York
Stock Exchange; (viii) the preparation, printing and
distribution of one or more versions of the Preliminary Prospectus
and the Prospectus for distribution in Canada (often in the form of
a Canadian “wrapper” (including related fees and
expenses of Canadian counsel to the Underwriter)); and
(ix) otherwise incident to the performance of its obligations
hereunder for which provision is not otherwise made in this
Section 4(f). It is understood, however, that, except as
provided in this Section 4(f) or Sections 7 and 9 hereof, the
Underwriter will pay all of its own costs and expenses, including
the fees and expenses of counsel to the Underwriter and any
advertising expenses incurred in connection with the offering of
the Stock. If the sale of the Stock provided for herein is not
consummated by reason of acts of the Company or changes in
circumstances of the Company pursuant to Section 9 of this
Agreement which prevent this Agreement from becoming effective, or
by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or
because any other condition of the Underwriter’s obligations
hereunder is not fulfilled or if the Underwriter declines to
purchase the Stock for any reason permitted under this Agreement
(other than by reason of a default by the Underwriter pursuant to
Section 9 or if the Underwriter terminates this Agreement
under Section 9 of this Agreement), the Company will reimburse
the Underwriter for all reasonable out-of-pocke
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