Exhibit 1.1
32,051,283 Shares
Prudential Financial,
Inc.
Common Stock
Underwriting
Agreement
June 2, 2009
Citigroup Global Markets
Inc.
Goldman, Sachs & Co.
As Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Prudential Financial, Inc., a New
Jersey corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1 hereto
(the “Underwriters”), for whom Citigroup Global Markets
Inc. and Goldman, Sachs & Co. are acting as
representatives (the “Representatives”), an aggregate
of 32,051,283 shares (the “Underwritten Securities”) of
common stock, par value $0.01 per share (“Stock”), and,
at the option of the Representatives acting on behalf of the
Underwriters, up to 4,807,692 additional shares of Stock (the
“Option Securities”) of the Company (the Underwritten
Securities and the Option Securities that the Underwriters elect to
purchase pursuant to Section 2 hereof being collectively
called the “Securities”).
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Securities, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf
registration statement, as defined under Rule 405 under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Securities
Act”), on Form S-3 (File Nos. 333-157848, 333-157848-01 and
333-157848-02), including a prospectus (the “Base
Prospectus”), relating to securities, including the
Securities, to be issued from time to time by the Company. Such
registration statement, as amended as of its most recent effective
date, is referred to herein as the “Registration
Statement”; and as used herein, the term “Preliminary
Prospectus” means any preliminary prospectus supplement
specifically relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Securities Act, together with the
Base Prospectus, and the term “Prospectus” means the
prospectus supplement specifically relating to the Securities,
together with the Base Prospectus, in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the
Securities. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the most recent effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be and any reference to
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities
Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
“Exchange Act”) that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
The “Time of Sale” means
5:55 p.m. (Eastern time) on June 2, 2009. The “Time of
Sale Information” means a Preliminary Prospectus dated
June 1, 2009 (including the Base Prospectus) and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex B hereto as
constituting part of the Time of Sale Information. The final term
sheet relating to the Securities in substantially the form of
Exhibit 1 to Annex B hereto is referred to herein as the
“Final Term Sheet.”
2. Purchase of the Securities by
the Underwriters . (i) The Company agrees to issue and
sell the Underwritten Securities to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the number of
Underwritten Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a purchase price equal to $37.756875
per share and (ii) in the event and to the extent that the
Underwriters shall exercise the option to purchase Option
Securities as provided below, 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 price per share set forth in clause (i) of this
Section 2, that portion of the number of Option Securities as
to which such election or elections shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined
by multiplying such number of Option Securities by a fraction, the
numerator of which is the maximum number of Option Securities which
such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule 1 hereto and the denominator
of which is the maximum number of Option Securities that all the
Underwriters are entitled to purchase hereunder.
Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to
4,807,692 Option Securities, at the purchase price per share set
forth in the paragraph immediately above, provided that the
purchase price per Option Security shall be reduced by an amount
per share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Securities but not payable
on the Option Securities. Said option may be exercised, in whole or
in part, at any time and from time to time on or before the 30th
day after the date of the Prospectus upon written notice by the
Representatives to the Company setting forth the aggregate number
of Option Securities as to which the several Underwriters are
exercising the option and the settlement date, which may be the
same date as the Initial Closing Date (as defined below) but shall
not be (x) earlier than the Initial Closing Date nor
(y) earlier than the third business day after the date of such
notice, except as the Company and the Representatives may otherwise
agree.
The Company will not be obligated to
deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(a) The Company understands that the
Underwriters intend to make a public offering of the Securities as
soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable. It is understood that the
several Underwriters propose to initially offer the Securities for
sale to the public on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and
sell Securities to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Securities purchased by
it to or through any Underwriter.
(b) Payment for and delivery of the
Underwritten Securities will be made at 10:00 a.m., New York City
time, on June 8, 2009, or at such other time on the same or
such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing
and payment for and delivery of the Option Securities will be made
at 10:00 a.m., New York City time, on the date specified by the
Representatives in the written notice of the Underwriters’
election to purchase such Option Securities, or at such other time
on the same or such other date, not later than the fifth business
day thereafter, as the Representatives and the Company may agree
upon in writing. The time and date of such payment and delivery for
the Underwritten Securities is referred to herein as the
“Initial Closing Date,” and the time and date for each
payment for the Option Securities, if other than the Closing Date,
is herein referred to as an “Additional Closing Date.”
The Initial Closing Date and any Additional Closing Date are herein
referred to collectively as the “Closing Dates” and
individually as a “Closing Date.”
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(c) Delivery of the Securities shall
be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
(d) The Company acknowledges and
agrees that each of the Underwriters is acting solely in the
capacity of an arm’s length contractual counterparty to the
Company with respect to the offering of Securities contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representatives nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Time of Sale Information and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except to the extent that the failure to be so
qualified would not have, individually or in the aggregate, a
material adverse effect on the business, management, financial
position, shareholders’ equity or results of operations (in
each case considered on a U.S. generally accepted accounting
principles (“GAAP”) basis) of the Company and its
subsidiaries, considered as a whole (a “Material Adverse
Effect”); and The Prudential Insurance Company of America, a
New Jersey stock life insurance company (the “Principal
Subsidiary”), has been duly incorporated and is validly
existing as a stock life insurance company in good standing under
the laws of the State of New Jersey, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Time of Sale Information and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except to the extent that the failure to be so
qualified would not have, individually or in the aggregate, a
Material Adverse Effect.
(ii) The Securities have been duly
and validly authorized by the Company and, when issued and
delivered against payment therefor as provided in this Agreement,
will be duly and validly issued and fully paid and non-assessable
and will conform, in all material respects, to the descriptions
thereof contained in the Time of Sale Information and the
Prospectus; and this Agreement has been duly authorized, executed
and delivered by the Company. The issuance of the Securities is not
subject to any preemptive or similar rights of any securityholder
of the Company.
(iii) The Company has an authorized
capitalization as set forth in the Time of Sale Information and the
Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Time of Sale Information and
the Prospectus; and, except as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are authorized or
outstanding.
(iv) No order preventing or
suspending the use of any Preliminary Prospectus or any
“issuer free writing prospectus” as defined in Rule 433
under the Securities Act (“Issuer Free Writing
Prospectus”) has been
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issued by the Commission, and each Preliminary
Prospectus and Issuer Free Writing Prospectus, at the time of
filing thereof, complied in all material respects with the
Securities Act and each Preliminary Prospectus and Issuer Free
Writing Prospectus when taken together with the Preliminary
Prospectus, at the Time of Sale, did 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 the Company makes no
representation or warranty as to the information contained in or
omitted from any Preliminary Prospectus or Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the
Representatives specifically for inclusion therein.
(v) The Time of Sale Information, as
of the Time of Sale, did 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 the Company makes no representation or
warranty as to the information contained in or omitted from the
Time of Sale Information in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
the Representatives specifically for inclusion therein.
(vi) The Company (including its
agents and representatives, other than the Underwriters in their
capacity as such) has not made and will not make any offer to sell
or solicitation of an offer to buy the Securities that would
constitute an “Issuer Free Writing Prospectus” without
the prior consent of the Representatives other than the documents
listed in Annex B hereto as constituting the Time of Sale
Information for which the Company has received such consent. Each
such Issuer Free Writing Prospectus complied or complies in all
material respects with the Securities Act, and has been or will be
(within the time period specified in Rule 433) filed in accordance
with the Securities Act (to the extent required
thereby).
(vii) The Registration Statement is
an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the
Commission not earlier than three years prior to the date hereof;
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. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and,
to the knowledge of the Company, no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; as of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration
Statement complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of any
Closing Date, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes
the Statement of Eligibility and Qualification (Form T-1) of the
trustee under the Trust Indenture Act of 1939, as amended, or
(ii) the information contained in or omitted from the
Registration Statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
the Representatives specifically for inclusion therein.
(viii) The documents incorporated by
reference in the Prospectus and the Time of Sale Information, when
they were filed with the Commission conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained any 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, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(ix) The consolidated financial
statements of the Company and its subsidiaries, together with the
related schedules, notes and supplemental information, set forth or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, comply in all material
respects with the requirements of the Securities Act and the
Exchange Act and interpretations thereof, as applicable, and
present fairly in all material respects the financial position, the
results of operations and the changes in cash flows of such
entities in conformity with GAAP at the respective dates or for the
respective periods to which they apply; such statements and related
schedules, notes and supplemental information have been prepared in
accordance with GAAP consistently applied throughout the periods
involved, except for any normal year-end adjustments and except as
described therein.
(x) PricewaterhouseCoopers LLP,
which has certified certain financial statements of the Company and
its subsidiaries and delivered its report with respect to the
audited consolidated financial statements and schedules included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, is an independent
registered public accounting firm with respect to the Company
within the meaning of the Securities Act and the rules and
regulations thereunder.
(xi) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designated
by the Company’s principal executive officer and principal
financial offer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The
Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting.
(xii) Since the date of the last
audited financial statements included or incorporated by reference
in the Time of Sale Information, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(xiii) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective in all material respects to perform the
functions for which they were established.
(xiv) Other than litigation (none of
which is reasonably likely to be material) incidental to the kinds
of business conducted by the Company and its subsidiaries, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, other than as set forth
in the Time of Sale Information and the Prospectus; and, to the
best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others, other than as set forth in the Time of Sale
Information and the Prospectus.
(xv) None of the Company or any of
its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Time of Sale Information and the Prospectus any loss or
interference with its business that is, individually or in the
aggregate, material to the Company and its subsidiaries, considered
as a whole, from fire, explosion, flood or other calamity, whether
or not covered by insurance (excluding, for the avoidance of doubt,
any insurance underwriting losses of the Company or its
subsidiaries), or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Time of Sale Information and the Prospectus;
since the respective dates as of which information is given the
Time of Sale Information and the Prospectus, as then amended or
supplemented, and prior to the Initial Closing Date, there has not
been any material decrease in the capital or surplus of the
Company, any material decrease in the capital stock of the Company
or any material increase in the consolidated long-term debt of the
Company (other than as a result of the sale of (i) Securities,
(ii) notes issued pursuant to the Company’s Medium-Term
Note program, Retail Medium-Term Note Program, Euro Medium-Term
Note Programme or InterNotes® retail note program,
(iii) notes issued pursuant to the Commercial Paper Program of
either the
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Company or Prudential Funding, LLC,
(iv) equity securities issued in connection with the
Company’s Floating Rate Convertible Senior Notes due 2036, or
(v) equity securities issued in connection with the
Company’s Floating Rate Convertible Senior Notes due 2037);
and, since the respective dates as of which information is given in
the Time of Sale Information and the Prospectus, as then amended or
supplemented, there has not been any material adverse change, or
any development that will involve a prospective material adverse
change, in or affecting the business, financial condition or
results of operations of the Company and its subsidiaries
considered as a whole (a “ Material Adverse Change
”), otherwise than as set forth or contemplated in the Time
of Sale Information and the Prospectus.
(xvi) Neither the Company nor any of
its subsidiaries is in violation of its Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws or
other organizational documents or instruments.
(xvii) Neither the Company nor any
of its subsidiaries is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, which violation or default
would have, individually or in the aggregate, a Material Adverse
Effect.
(xviii) The issue and sale of the
Securities, the compliance by the Company with all of the
provisions of the Securities and this Agreement and the
consummation of the transactions herein and therein contemplated,
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except where
such conflict, breach, violation or default would not have,
individually or in the aggregate, a Material Adverse Effect; nor
will any such action result in any violation of the provisions of
the Amended and Restated Certificate of Incorporation or Amended
and Restated By-laws of the Company or the organizational documents
of any of its subsidiaries or any statute or any order, rule or
regulation of any court or insurance regulatory agency or other
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except where
such violation (other than with respect to the provisions of the
Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws of the Company) would not have, individually or in
the aggregate, a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental or public regulatory body or authority
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement, except (i) for the registration of the
Securities under the Securities Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under applicable state securities or Blue Sky laws of any
jurisdiction in which the Securities are offered and sold in
connection with the purchase and distribution of the Securities by
the Underwriters or (ii) where the failure to obtain such
consent, approval, authorization, order, registration or
qualification would not have, individually or in the aggregate, a
Material Adverse Effect.
(xix) As of the date of this
Agreement, neither the Company nor, to the Company’s
knowledge, any of its affiliates, has taken, directly or
indirectly, any action designed to or that has constituted 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 Securities.
(xx) The Company is not, and after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Time of
Sale Information and the Prospectus, will not be, an
“investment company,” as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (the “Investment Company
Act”).
(xxi) The Company has not paid or
agreed to pay to any person any compensation for soliciting another
to purchase any securities of the Company (except as contemplated
in this Agreement).
(xxii) The Company is subject to and
in full compliance with the reporting requirements of
Section 13 or Section 15(d) of the Exchange
Act.
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(xxiii) The statements in the
Preliminary Prospectus and the Prospectus under the headings
“Description of Our Common Stock” and “Certain
United States Tax Consequences to Non-U.S. Holders of Common
Stock” fairly summarize the matters therein
described.
(xxiv) The Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Securities Act, in each case at the times
specified in the Securities Act in connection with the offering of
the Securities.
4. Further Agreements of the
Company . The Company covenants and agrees with each
Underwriter that:
(a) Required Filings . The
Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or
430C under the Securities Act, will file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Securities
Act; and will 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), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities. The Company will pay
the required Commission filing fees for this offering within the
time period required by Rule 456(b)(1)(i) under the Securities Act
(without giving effect to the proviso therein) and otherwise in
accordance with Rules 456(b) and 457(r) under the Securities
Act.
(b) Delivery of Copies . The
Company will deliver, without charge, during the Prospectus
Delivery Period (as defined below), as many hard copies and
electronic copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the
Representatives may reasonably request. As used herein, the term
“Prospectus Delivery Period” means such period of time
after the first date of the public offering of the Securities as in
the opinion of counsel for the Underwriters a prospectus relating
to the Securities is required by law to be delivered (or required
to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or
dealer.
(c) Amendments or Supplements;
Issuer Free Writing Prospectuses . Before making, using or
filing any Issuer Free Writing Prospectus, and before filing any
amendment or supplement to the Registration Statement or the
Prospectus, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not
make, use or file any such Issuer Free Writing Prospectus or file
any such proposed amendment or supplement to which the
Representatives reasonably object; provided that the
foregoing requirement shall not apply to any of the Company’s
periodic filings with the Commission pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act.
(d) Notice to the
Representatives . The Company will advise the Representatives
promptly, (i) when any amendment to the Registration Statement
has been filed or becomes effective; (ii) when any supplement
to the Prospectus or any amendment to the Prospectus or any Issuer
Free Writing Prospectus has been filed; (iii) of any request
by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of
any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional
information; (iv) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding
for that purpose pursuant to Section 8A of the Securities Act;
(v) of the occurrence of any event within the Prospectus
Delivery Period as a result of which the Prospectus, the Time of
Sale Information or any Issuer Free Writing Prospectus, as then
amended or supplemented would include any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading;
(vi) of the receipt by the Company 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; and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
the Company will use its reasonable efforts to prevent the issuance
of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification
of the Securities and, if any such order is issued, will use
promptly its commercially reasonable efforts to obtain the
withdrawal thereof.
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(e) Time of Sale Information
. If at any time prior to any Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of
Sale Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading or (ii) if in the
discretion of the Company it is necessary to amend or supplement
the Time of Sale Information to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to
the extent required) and furnish to the Underwriters and to such
dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended
or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law.
(f) Ongoing Compliance . If
during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or
(ii) if in the discretion of the Company or the
Representatives it is necessary to amend or supplement the
Prospectus to comply with law, the Company will promptly notify the
Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as
the Representatives may designate, such amendments or supplements
to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law.
(g) Blue Sky Compliance . The
Company will endeavor, in cooperation with the Representatives, to
qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect
so long as required for distribution of the Securities;
provided that the Company shall not be required to
(i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if
it is not otherwise so subject.
(h) Earning Statement . The
Company will make generally available to its security holders as
soon as practicable, but in any event no later than 16 months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earning statement that
satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated
thereunder.
(i) Clear Market . During the
period of 90 days after the date of the Prospectus, neither the
Company, nor any of its subsidiaries or other affiliates over which
it exercises management or voting control, nor any person acting on
their behalf, will, without the prior written consent of the
Representatives, directly or indirectly, offer, sell, contract to
sell, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise)),
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder with respect to, any
shares of Stock of the Company or any securities convertible into
or exercisable or exchangeable for such Stock, or publicly announce
an intention to effect any such transaction (other than
(1) the offer and sale of Securities pursuant to this
Agreement, (2) the grant of awards pursuant to the
Company’s employee benefit, employee stock purchase and other
similar plans, in each case, as existing on the date hereof (the
“Employee Benefit Plans”), (3) the offering, sale,
settlement or issuance of Securities pursuant to any award or
security issued under or pursuant to an Employee Benefit Plan,
(4) the offering, sale, settlement or issuance of Securities
pursuant to any warrants, stock options or other convertible
securities outstanding as of the date hereof, or (5) the
issuance of shares of Stock as consideration for the acquisition by
the Company or one of its subsidiaries from a third party of assets
or of equity interests of any other entity which entity
8
would, after giving effect to the acquisition of
such equity interests, be a subsidiary of the Company;
provided that the aggregate number of shares to be issued in
acquisitions pursuant to this clause does not exceed 10% of the
outstanding Stock of the Company as of the date hereof).
(j) Conflicts with Registration
Statement . The Company agrees that each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the
Securities or until any earlier date that the issuer notified or
notifies the Representatives as described in the next sentence, did
not, and does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Preliminary Prospectus
or the Prospectus, as then amended or supplemented. The Company
further agrees that if at any time following the issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a
result of which such Issuer Free Writing Prospectus, if not
amended, would conflict with the information in the Registration
Statement, the Preliminary Prospectus or the Prospectus, as then
amended or supplem
