Exhibit 1.1
Sempra Energy
6.50% Notes due 2016
Underwriting Agreement
May 12, 2009
BNP Paribas Securities
Corp.
787 Seventh Avenue
New York, New York 10019
Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
As Representatives of the
several Underwriters
Ladies and Gentlemen:
Sempra Energy, a California
corporation (the “ Company ”), confirms its
agreement with each of the Underwriters named in Schedule I hereto
(collectively, the “ Underwriters ,” which term
shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), for whom BNP Paribas Securities
Corp., Citigroup Global Markets Inc. and Deutsche Bank Securities
Inc. are acting as representatives (the “
Representatives ”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $750,000,000 aggregate principal
amount of the Company’s 6.50% Notes due 2016 (the “
Securities ”). The Securities are to be issued
pursuant to an indenture dated February 23, 2000 (the “
Indenture ”) between the Company and U.S. Bank
National Association, as successor trustee to U.S. Bank Trust
National Association (the “ Trustee ”). The term
“Indenture,” as used herein, includes the
Officers’ Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to
Sections 201 and 301 of the Indenture.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) an automatic shelf registration statement on Form S-3
(No. 333-153425), which registration statement became
effective upon filing under Rule 462(e) of the rules and
regulations of the Commission (the “ Rules and
Regulations ”) under the Securities Act of 1933, as
amended (the “ Act ”). Such registration
statement covers the registration of the Securities (among others)
under the Act. Such registration statement, in the form in which it
became
effective, as amended through the date hereof,
including the information deemed pursuant to Rule 430B under the
Rules and Regulations to be part of the registration statement at
the time of its effectiveness (“ Rule 430B Information
”) and all documents incorporated or deemed to be
incorporated by reference therein through the date hereof, is
hereinafter referred to as the “ Registration
Statement .” The Company proposes to file with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations the Prospectus Supplement (as defined in
Section 5(h)) hereof) relating to the Securities and the
prospectus dated December 12, 2008 (the “ Base
Prospectus ”), and has previously advised you of all
further information (financial and other) with respect to the
Company set forth therein. The Base Prospectus together with the
Prospectus Supplement, in their respective forms on the date hereof
(being the forms in which they are to be filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations),
including all documents incorporated or deemed to be incorporated
by reference therein through the date hereof, are hereinafter
referred to as, collectively, the “ Prospectus
,” except that if any revised prospectus or prospectus
supplement shall be provided to the Underwriters by the Company for
use in connection with the offering and sale of the Securities
which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the
Company pursuant to Rule 424(b) of the Rules and Regulations),
the term “Prospectus” shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and
after the time it is first provided to the Underwriters for such
use. The term “ Preliminary Prospectus ,” as
used in this Agreement, means the preliminary prospectus supplement
dated May 12, 2009 and filed with the Commission on
May 12, 2009 pursuant to Rule 424(b) of the Rules and
Regulations, together with the Base Prospectus used with such
preliminary prospectus supplement in connection with the marketing
of the Securities, in each case as amended or supplemented by the
Company, including all documents incorporated or deemed to be
incorporated by reference therein through the date thereof. Unless
the context otherwise requires, all references in this Agreement to
documents, financial statements and schedules and other information
which is “contained,” “included,”
“stated,” “described in” or “referred
to” in the Registration Statement, the Preliminary Prospectus
or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”),
after the date of this Agreement which is or is deemed to be
incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus, as the case may
be.
At or prior to 3:38 p.m. (New
York City time) on the date hereof, which was the time when sales
of the Securities were first made (such time, the “
Applicable Time ”), the Company had prepared the
following information (collectively the “ Pricing
Disclosure Package ”): the Preliminary Prospectus and
each “free-writing prospectus” (as defined pursuant to
Rule 405 of the Rules and Regulations) listed on Schedule II
hereto.
1. The Company represents and
warrants to each Underwriter as of the date hereof (such date being
hereinafter referred to as the “ Representation Date
”), as of the Applicable Time, and as of the Time of Delivery
referred to in Section 4 as follows:
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(a) No order preventing or
suspending the use of the Preliminary Prospectus has been issued by
the Commission, and the Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Act and
did 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 representations and
warranties in this subsection (a) shall not apply to
statements in or omissions from the Preliminary Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Preliminary Prospectus.
(b) The Pricing Disclosure Package,
at the Applicable Time did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the representations and warranties in this
subsection (b) shall not apply to statements in or omissions
from the Pricing Disclosure Package made in reliance upon and in
conformity with information furnished to the Company in writing by
any Underwriter through the Representatives expressly for use in
such Pricing Disclosure Package.
(c) The Company (including its
agents and representatives, other than the Underwriters in their
capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 of the Rules and Regulations) that constitutes
an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and
representatives other than the Underwriters in their capacity as
such (other than a communication referred to in clauses (i),
(ii) and (iii) below) an “ Issuer Free Writing
Prospectus ”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Rules and or Rule 134 of the Rules and Regulations,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule II hereto and
(v) any electronic road show or other written communications,
in each case approved in writing in advance by the Representatives.
Each such Issuer Free Writing Prospectus complied in all material
respects with the Act, has been or will be (within the time period
specified in Rule 433 of the Rules and Regulations) filed (to
the extent required thereby) in accordance with the Act and when
taken together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, such Issuer Free Writing
Prospectus, did not, and at the Time of Delivery will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that the
representations and warranties in this subsection (c) shall
not apply to statements in or omissions from any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus. 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 Company notified or notifies the Representatives as
described in Section 5(c), did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
Prospectus or the Preliminary Prospectus that has not been
superseded or modified.
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(d) The Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Rules and Regulations became effective 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) of the Rules and Regulations has been received
by the Company. Each of the Registration Statement and the Base
Prospectus, at the respective times the Registration Statement and
any post-effective amendments thereto became effective and as of
the Representation Date, complied and comply in all material
respects with the requirements of the Act and the Rules and
Regulations (including Rule 415(a) of the Rules and Regulations),
and the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”), and the rules and regulations
of the Commission under the Trust Indenture Act, and the
Registration Statement did not and as of the Representation Date
and at the Time of Delivery does not 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. No order suspending the effectiveness of
the Registration Statement has been issued under the Act and no
proceedings for that purpose or pursuant to Section 8A of the
Act against the Company or related to the offering of the
Securities have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been
complied with. The Prospectus, at the Representation Date (unless
the term “Prospectus” refers to a prospectus which has
been provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from
the Prospectus filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, in which case at the time it is first
provided to the Underwriters for such use) and at the Time of
Delivery, does not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the representations and warranties in this
subsection (d) shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly
for use in the Registration Statement or the Prospectus or the
information contained in any Statement of Eligibility and
Qualification of a trustee under the Trust Indenture Act filed as
an exhibit to the Registration Statement (a “
Form T-1 ”).
(e) The documents filed by the
Company and incorporated or deemed to be incorporated by reference
into the Registration Statement, the Prospectus and the Pricing
Disclosure Package pursuant to Item 12 of Form S-3 under
the Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder (the “ Exchange Act
Regulations ”), and, when read together and with the
other information in the Registration Statement, the Prospectus and
the Pricing Disclosure Package, at the respective times the
Registration Statement and any amendments thereto became effective,
at the Representation Date, the Applicable Time and at the Time of
Delivery, did not, do not 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 in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
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(f) The Company and its subsidiaries
taken as a whole have not sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Disclosure Package and the
Prospectus; and, since the date as of which information is given in
the Pricing Disclosure Package and the Prospectus, there has not
been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries (except for the issuance by
SDG&E (as defined below) of $300,000,000 aggregate principal
amount of its 6.00% First Mortgage Bonds, Series GGG, due 2039) or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the
Pricing Disclosure Package or the Prospectus.
(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of California, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Disclosure Package 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 where the failure to be so qualified would
not subject it to material liability or disability; and each of
Southern California Gas Company, a California corporation (“
SCGC ”), San Diego Gas & Electric Company, a
California corporation (“ SDG&E ”), Pacific
Enterprises, a California corporation (“ PE ”),
Enova Corporation, a California corporation (“ Enova
”), and Sempra Global, a California corporation (“
Global ”) (collectively, SCGC, SDG&E, PE, Enova
and Global are referred to herein as the “ Significant
Subsidiaries ”), has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation.
(h) The Company has an authorized
capitalization as set forth in the Pricing Disclosure Package and
the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and all of the issued shares
of capital stock of each Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable
and, except for the outstanding preferred stock of SCGC and PE and
outstanding preferred and preference stock of SDG&E, are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(i) The Securities have been duly
authorized for issuance and sale by the Company, and, when the
Securities are issued and delivered pursuant to this Agreement,
such Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of
Delivery, the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, fraudulent transfer,
reorganization,
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moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles; and the Indenture
conforms, and the Securities will conform, to the descriptions
thereof contained in the Pricing Disclosure Package and the
Prospectus as amended or supplemented.
(j) This Agreement has been duly
authorized, executed and delivered by the Company.
(k) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture 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 material contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument
to which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the material properties or
assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or Bylaws of the
Company or any of its Significant Subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective material
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(l) The statements set forth in the
Pricing Disclosure Package and the Prospectus as amended or
supplemented under the captions “Description of Debt
Securities” and “Description of the Notes,”
insofar as they purport to constitute a summary of the terms of the
Securities or the Indenture, and under the captions “Plan of
Distribution” and “Underwriting,” insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects.
(m) Neither the Company nor any of
its Significant Subsidiaries is (i) in violation of its
Articles of Incorporation or Bylaws or (ii) in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except in the case of clause
(ii) for such defaults which, individually or in the
aggregate, would not reasonably be expected to have a material
adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole.
(n) Other than as set forth in the
Pricing Disclosure Package and the Prospectus, (i) 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 except for
such proceedings which, if determined adversely to the Company or
any of its
6
subsidiaries, would not reasonably
be expected individually or in the aggregate to have a material
adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole and (ii) to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(o) The Company is not and after
giving effect to the offering and sale of the Securities, will not
be, an “investment company,” as such term is defined in
the Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(p) Deloitte & Touche LLP,
who have certified certain financial statements of the Company and
its subsidiaries taken as a whole, is an independent registered
public accounting firm as required by the Act and the Rules and
Regulations and the rules and regulations of the Public Company
Accounting Oversight Board.
(q) The financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and Prospectus present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results
of their operations for the periods specified; and, except as
stated therein, such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(r) The Company and each of its
consolidated subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S.
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any material
differences.
(s) The Company and each of its
consolidated subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act); such disclosure controls and procedures are
effective.
(t) The Company and its subsidiaries
possess such certificates, authorities or permits issued by the
appropriate state, federal, local or foreign regulatory agencies or
bodies necessary to conduct the businesses now operated by them,
except where the failure to possess such certificates, authorities
or permits, individually or in the aggregate, would not have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole.
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(u) The Company and its subsidiaries
are in compliance with, and conduct their respective businesses in
conformity with, all applicable state, federal, local and foreign
laws and regulations relating to the operation and ownership of a
public utility, including, without limitation, those relating to
the distribution and transmission of natural gas, except to the
extent that any failure so to comply or conform would not
individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole.
2. The Company understands that upon
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
Prospectus as amended or supplemented.
3. On the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at 99.153% of the principal amount thereof, the aggregate
principal amount of Securities set forth in Schedule I
opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9
hereof.
4. Payment of the purchase price
for, and delivery of certificates for, the Securities shall be made
at the office of Latham & Watkins LLP, 633 West
Fifth Street, Los Angeles, California 90071 or at such other place
as shall be agreed upon by the Representatives and the Company, at
10:00 a.m., (New York City time), on May 15, 2009, or
such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called the
“ Time of Delivery ”). Payment shall be made to
the Company by wire transfer of Federal (same day) funds to the
account specified by the Company to the Representatives at least
forty-eight hours in advance against delivery to the
Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them.
Certificates for the Securities shall be in such authorized
denominations and registered in such names as the Representatives
may request upon at least forty-eight hours prior notice to the
Company. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities
which it has agreed to purchase. Citigroup Global Markets Inc.,
individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price
for the Securities to be purchased by any Underwriter whose check
has not been received by the Time of Delivery, but such payment
shall not release such Underwriter from its obligations hereunder.
The certificates for the Securities will be made available for
examination and packaging by the Representatives not later than
10:00 a.m., (New York City time), on the last business day
prior to the Time of Delivery in New York, New York.
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5. The Company agrees with each of
the Underwriters:
(a) To prepare the Prospectus as
amended or supplemented in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission’s close of business on the
second business day following the date hereof or, if applicable,
such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement
or Prospectus as amended or supplemented after the date hereof and
prior to the Time of Delivery which shall be disapproved by the
Representatives promptly after reasonable notice thereof; to advise
the Representatives promptly of any such amendment or supplement
after the Time of Delivery and furnish the Representatives with
copies thereof; 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), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of
the Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any examination pursuant to Section 8(e) of the Act
concerning the Registration Statement, or of the Company becoming
the subject of a proceeding under Section 8A of the Act in
connection with the offering of the Securities, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to
promptly use commercially reasonable efforts to obtain the
withdrawal of such order;
(b) To prepare a final term sheet or
sheets (the “ Final Term Sheet ”) reflecting the
final terms of the Securities, in the form of Schedule III hereto,
and file such Final Term Sheet as an “issuer free writing
prospectus” pursuant to Rule 433 prior to the close of
business two business days after the date hereof; provided that the
Company shall furnish the Representatives with copies of any such
Final Term Sheet a reasonable amount of time prior to such proposed
filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall reasonably
object;
(c) If at any time after the date
hereof any events shall have occurred as a result of which any
Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement,
the Preliminary Prospectus or the Prospectus or 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, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, to notify
the Representatives and, upon their request, to file such document
and to prepare and furnish without charge to each Underwriter as
many copies as the Representatives may from time to time reasonably
request of an amended or
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supplemented Issuer Free Writing
Prospectus that will correct such conflict, statement or omission
or effect such compliance;
(d) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify the Securities for offering 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 of the Securities, provided
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) Prior to 10:00 a.m., New York
City time, on the New York business day next succeeding the date
hereof, or such later time or date as agreed to by the Company and
the Representatives, and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives
may reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time 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 during such same period to
amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities 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;
(f) To make generally available to
its securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act),
an earnings statement of the Company and its consolidated
subsidiaries (
