EXECUTION COPY
THE STANLEY WORKS
$200,000,000
5.00% Notes Due 2010
Underwriting Agreement
New York, New York
March 15, 2007
To the Representatives named in
Schedule I hereto of
the several Underwriters named in Schedule II hereto
Ladies and Gentlemen:
The
Stanley Works, a corporation organized under the laws of the State
of Connecticut (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its debt securities identified in Schedule I
hereto (the “Securities”), to be issued under the
Indenture (the “Indenture”) dated as of November 1,
2002, between the Company and The Bank of New York Trust Company,
N.A. , as successor trustee (the “Trustee”) to JP
Morgan Chase Bank N.A. To the extent there are no additional
Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement
or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 19 hereof.
1.
Representations and Warranties . The Company represents and
warrants to each Underwriter as set forth below in this Section
1.
(a) The
Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a shelf
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time has become
effective. The
Company will file with the
Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and
the rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On
each Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined herein), the Final Prospectus
(and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; on each Effective Date and at
the Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing
Date, the Final Prospectus (together with any supplement thereto)
will not include 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
Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Final 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 any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(c) The
Disclosure Package does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(d) Each
Issuer Free Writing Prospectus and the final term sheet prepared
and filed by the Company pursuant to Section 5(b) hereto, if any,
does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus or final term
sheet based upon and in conformity with written information
furnished to the Company by any Underwriter
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through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(e) The
Company, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus will not be, an
“investment company” as defined in the Investment
Company Act.
(f) The
Company is subject to and in full compliance with the reporting
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(g) The
Company has not taken, directly or indirectly, any action designed
to or that has constituted or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(h) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Connecticut with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction that requires such qualification, except where the
failure to so qualify is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or
earnings, business or affairs of the Company and its subsidiaries,
considered as one enterprise (a “Material Adverse
Effect”).
(i) Each
subsidiary of the Company identified on Schedule III hereto (each,
a “Designated Subsidiary” and, collectively, the
“Designated Subsidiaries”) has been duly organized and
is validly existing as a corporation, limited partnership or
limited liability company, as the case may be, and is, in
jurisdictions where the legal concept exists, in good standing
under the laws of the jurisdiction of its formation, has the power
and authority to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the
Final Prospectus and is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction set
forth on Schedule III opposite each such Designated
Subsidiary’s name in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Disclosure Package and the
Final Prospectus, all of the issued and outstanding capital stock,
partnership interests or membership interests, as the case may be,
of each Designated Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance claim or
equity, except where such security interest, mortgage, pledge,
lien, encumbrance, claim or equity would not result in a Material
Adverse Effect; none of the outstanding shares of capital stock,
partnership interests or membership interests, as the case may be,
of the Designated Subsidiaries was issued in violation of any
preemptive or similar rights of any securityholder of such
Designated Subsidiary; and the Designated Subsidiaries constitute
all
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of the Company’s
“significant subsidiaries” (as defined in Rule 1-02 of
Regulation S-X under the Act).
(j) The
Company’s authorized equity capitalization is as set forth or
incorporated by reference in the Disclosure Package and the Final
Prospectus; the outstanding shares of common stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable.
(k) The
Securities have been duly authorized by the Company, and, when
issued and delivered against payment therefor as provided herein,
will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, and will be
entitled to the benefits of the Indenture and will conform in all
material respects to the description thereof contained in the
Disclosure Package and the Final Prospectus.
(l) The
Indenture has been duly authorized, executed and delivered, and
constitutes a valid and binding instrument enforceable against the
Company in accordance with its terms (subject to applicable
bankruptcy, insolvency and similar laws affecting creditors rights
generally and to general principles of equity); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture.
(m) The
statements in the Disclosure Package and the Final Prospectus under
the headings “Certain U.S. Federal Income Tax Considerations
For Non-U.S. Holders”, “Description of The Notes”
and “Underwriting” fairly summarize the documents and
matters therein described.
(n) This
Agreement has been duly and validly authorized, executed and
delivered by the Company.
(o) The
execution, and delivery by the Company of this Agreement, the
Indenture and the Securities, 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 Designated
Subsidiaries is a party or by which the Company or any of its
Designated Subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Articles of Incorporation or by-laws of the Company or the charter
or by-laws of any of its Designated Subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency
or body (including, without limitation, any insurance regulatory
agency or body) having jurisdiction over the Company or any of its
Designated Subsidiaries or any of their 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 consummation by the Company of the transactions contemplated by
this Agreement, except as have been obtained or made and except
such consents, approvals, authorizations, registrations or
qualifications as may be required under
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state securities or Blue Sky laws
in connection with the purchase of the Securities and distribution
of the Securities by the Underwriters.
(p) The
consolidated historical financial statements and related schedules
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Disclosure Package and the Final
Prospectus present fairly the financial condition, results of
operations and cash flows of the Company as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of Regulation S-X and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein).
(q) 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 Designated Subsidiaries or its or their property is
pending or, to the reasonable knowledge of the Company, threatened
that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement, the Indenture or the
Securities, or the consummation of any of the transactions
contemplated hereby or thereby or (ii) could reasonably be expected
to have a Material Adverse Effect, except as set forth in,
incorporated by reference in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(r) The
Company and its Designated Subsidiaries owns or leases all such
properties as are necessary to the conduct of the operations of the
Company and the Designated Subsidiaries as presently conducted,
except when the failure to own or lease such properties is not
reasonably likely to result in a Material Adverse
Effect.
(s) Neither
the Company nor any of its Designated Subsidiaries is in violation
or default of (i) any provision of its charter or bylaws or (ii) to
the reasonable knowledge of the Company: (A) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject; or (B) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its Designated Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such Designated
Subsidiary or any of its properties, as applicable, except, in the
case of subclauses (A) and (B), for such violations or defaults
that are not reasonably likely to result in a Material Adverse
Effect.
(t) Ernst
& Young LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial
statements and related schedules and the internal controls of the
Company included or incorporated by reference in the Disclosure
Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of
Regulation S-X under the Act.
(u) There
are no stamp or other issuance or transfer taxes or duties or other
similar fees or charges under federal law or the laws of any state,
or any political subdivision
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thereof, required to be paid in
connection with the execution and delivery of this Agreement and
the issuance or sale of the Securities or the issuance or sale by
the Company of the Securities.
(v) Each
of the Company and its Designated Subsidiaries has timely
filed all non-U.S., U.S. federal, state and local tax returns that
are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have
a Material Adverse Effect and except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto)) and has paid
all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith and for
which adequate reserves have been provided in accordance with
generally accepted accounting principles, or as would not have a
Material Adverse Effect and except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto).
(w) No
labor problem or dispute with the employees of the Company or
any of its Designated Subsidiaries exists or, to the reasonable
knowledge of the Company, is threatened or imminent, except as
would not have a Material Adverse Effect, and except as set forth
in or contemplated in the Disclosure Package and the Final
Prospectus (in each case exclusive of any amendment or supplement
thereto).
(x) No
Designated Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to
the Company or any other subsidiary of the Company, except as
described in or contemplated in the Disclosure Package and the
Final Prospectus (in each case exclusive of any amendment or
supplement thereto).
(y) The
Company and its Designated Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate U.S. federal, state or non-U.S. regulatory authorities
necessary to conduct their respective businesses as now operated by
them, except where the failure to possess such licenses, permits
and other authorizations would not, singly or in the aggregate, be
reasonably likely to have a Material Adverse Effect, and neither
the Company nor any of its Designated Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would be reasonably likely to have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (in each case exclusive of any
amendment or supplement thereto).
(z) The
Company and each of its Designated Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and
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(iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(aa) Except
as described, or incorporated by reference, in the Disclosure
Package and the Final Prospectus and except as such matters as
would not, singly or in the aggregate, reasonably likely result in
a Material Adverse Effect, (i) to the reasonable knowledge of the
Company, neither the Company nor any of its Designated Subsidiaries
is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental
Laws”), (ii) the Company and its Designated Subsidiaries have
all Governmental Licenses required under any applicable
Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the reasonable
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
Designated Subsidiaries and (iv) there are, to the reasonable
knowledge of the Company, no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its Designated Subsidiaries relating to Hazardous
Materials or Environmental Laws.
(bb) Except
as to such matters as would not, singly or in the aggregate,
reasonably likely result in a Material Adverse
Effect: (i) The minimum funding standard under Section
302 of the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations
thereunder (“ERISA”), has been satisfied by each
“pension plan” (as defined in Section 3(2) of ERISA)
which has been established or maintained by the Company and/or
one or more of its subsidiaries, and the trust forming part of each
such plan which is intended to be qualified under Section 401 of
the Code is so qualified; each of the Company and its
subsidiaries has fulfilled its obligations, if any, under Section
515 of ERISA; neither the Company nor any of its subsidiaries
maintains or is required to contribute to a “welfare
plan” (as defined in Section 3(1) of ERISA) which provides
retiree or other post-employment welfare benefits or insurance
coverage (other than “continuation coverage” (as
defined in Section 602 of ERISA)); (ii) each pension plan and
welfare plan established or maintained by the Company and/or
one or more of its subsidiaries is in compliance in all material
respects with the currently applicable provisions of ERISA; and
(iii) neither the Company nor any Designated Subsidiary has
incurred or could reasonably be expected to incur any withdrawal
liability under Section 4201 of ERISA, any liability under Section
4062, 4063, or 4064 of ERISA, or any other liability under Title IV
of ERISA.
(cc) None
of the Company, any Designated Subsidiary or, to the knowledge of
the Company, any director, officer, agent, employee or Affiliate of
the Company or any of its
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subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a
violation by such Persons of Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company, its subsidiaries and,
to the knowledge of the Company, its Affiliates have conducted
their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(dd) To
the reasonable knowledge of the Company, there is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply in
all material respects with any provision of the Sarbanes Oxley Act
of 2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes Oxley Act”), including Section
402 related to loans and Sections 302 and 906 related to
certifications.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2.
Purchase and Sale; Commission . Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price set forth in Schedule I
hereto the principal amount of the Securities set forth opposite
such Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made on the date and at the time specified in
Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the
“Closing Date”). 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 the account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise
instruct.
4.
Offering by Underwriters . It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Disclosure Package and the Final
Prospectus.
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5.
Agreements . The Company agrees with each Underwriter
that:
(a) Prior
to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company
will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the
Representatives (which approval shall not be unreasonably withheld)
with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (i) when the
Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration
statement and using its reasonable best efforts to have such
amendment or new registration statement declared effective as soon
as practicable.
(b) To
prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form
approved by you and attached as Schedule V hereto and to file such
term sheet pursuant to Rule 433(d) within the time required by such
Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Representatives so that any
use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to
correct such statement or omission; and (iii) supply any amendment
or supplement to you in such quantities as you may reasonably
request.
(d) If,
at any time when a prospectus relating to the Securities is
required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any
event occurs as a result of which the Final Prospectus as
then
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supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or
delivery of the Final Prospectus, the Company promptly will
(i) notify the Representatives of any such event,
(ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an
amendment or supplement or new registration statement which will
correct such statement or omission or effect such compliance, (iii)
use its reasonable best efforts to have any amendment to the
Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption
in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
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