19,000,000 Shares of Common
Stock
J.P. Morgan
Securities Inc.
277 Park Avenue
New York, New York 10172
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
UAL Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1
hereto (the “Underwriters”), for whom you are acting as
representatives (together, the “Representatives”), an
aggregate of 19,000,000 shares of common stock, par value $0.01 per
share (the “Common Stock”), of the Company (the
“Underwritten Shares”) and, at the option of the
Underwriters, up to an additional 2,850,000 shares of common stock,
par value $0.01 per share, of the Company (the “Option
Shares”) if and to the extent that the Underwriters shall
have determined to exercise the option to purchase such shares of
Common Stock granted to the Underwriters in Section 2 hereof.
The Underwritten Shares and the Option Shares are herein referred
to as the “Shares”.
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1.
Registration Statement . The Company has prepared and filed
with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), an automatic
shelf registration statement on Form S-3 (File
No. 333-155794), including a prospectus (the “Basic
Prospectus”), relating to the Shares. Such registration
statement, as amended at the time of this Agreement, including the
information, if any, deemed pursuant to Rule 430A, 430B or
430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the
“Registration Statement”. As used herein, the term
“Preliminary
Prospectus” means any preliminary form of
the Prospectus (as hereinafter defined) filed with the Commission
pursuant to Rule 424 under the Securities Act and the term
“Prospectus” means the 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 Shares. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, 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 effective date of the Registration Statement or the date of
the Basic Prospectus, 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.
At or prior to the
Applicable Time (as defined below), the Company had prepared the
following information (collectively, the “Time of Sale
Prospectus”): a Preliminary Prospectus dated
September 30, 2009, each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act)
listed on Annex A hereto and the final offering terms included in
Annex B hereto.
“Applicable
Time” means 7:00 p.m., New York City time, on October 1,
2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Shares 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 respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at
a price per share (the “Purchase Price”) of
$6.9504.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the
Company the Option Shares at the Purchase Price.
If any Option
Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Underwritten Shares set forth
opposite the name of such Underwriter in Schedule 1 hereto (or
such number increased as set forth in Section 10 hereof) bears
to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
The Underwriters
may exercise the option to purchase the Option Shares at any time
in whole, or from time to time in part, on or before the thirtieth
day following the date of this Agreement, by written notice from
the Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option Shares are
to
2
be delivered
and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the
Closing Date or later than the tenth full business day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Shares as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell the Shares to or through any
affiliate of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares, at the
offices of Milbank, Tweed, Hadley & McCloy LLP, One Chase
Manhattan Plaza, New York, New York 10005 at 10:00 A.M., New
York City time, on October 7, 2009, or at such other time or
place 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 or, in the case of the Option Shares, on the
date and at the time and place specified by the Representatives in
the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing
Date”, and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date”.
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the nominee of The Depository Trust Company (“DTC”),
for the respective accounts of the several Underwriters of the
Shares to be purchased on such date of one or more global
certificates representing the Shares, with any transfer taxes
payable in connection with the sale of such Shares duly paid by the
Company.
(d) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of the
Shares 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:
(a)
Registration Statement, Time of Sale Prospectus and
Prospectus . The Company meets the requirements for use of Form
S-3 under the Securities Act; the Registration Statement has become
effective; and, on the original effective date of the Registration
Statement, the Registration Statement complied in all material
respects with the requirements of the Securities Act; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the Commission. The
Registration Statement
3
is an
“automatic shelf registration statement” (as defined in
Rule 405 under the Securities Act), the Company is a
“well-known seasoned issuer” (as defined in
Rule 405 under the Securities Act) and the Company is eligible
to use the Registration Statement as an automatic shelf
registration statement, and the Company has not received notice
that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The
Registration Statement does not, as of the date hereof, include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. As of its date and on the
Closing Date or the Additional Closing Date, as the case may be,
the Prospectus, as amended and supplemented, if applicable, does
not and will not include an untrue statement of a material fact and
does not and will not 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. The
Registration Statement, as of the date hereof, complies and the
Prospectus complies, and as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder.
The Time of Sale Prospectus did not, as of the Applicable Time, and
as then amended or supplemented, if applicable, will not as of the
Closing Date or the Additional Closing Date, as the case may be,
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. Any information included in any “issuer free
writing prospectus” (as defined in Rule 433(h) under the
Securities Act) (each, an “Issuer Free Writing
Prospectus”) used in connection with the offering of the
Shares does not conflict with the information contained in the
Registration Statement, including any prospectus or prospectus
supplement that is part of the Registration Statement (including
pursuant to Rule 430B under the Securities Act) and not
superseded or modified. The preceding sentences do not apply to
statements in or omissions from the Registration Statement, the
Time of Sale Prospectus or the Prospectus in reliance upon and in
conformity with any written information furnished to the Company by
any Underwriter expressly for use therein.
(b) No
Material Adverse Change . Since the date of the most recent
audited financial statements of the Company incorporated by
reference in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except as otherwise stated or
incorporated by reference therein or contemplated thereby, there
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of
operations of the Company and its consolidated subsidiaries, taken
as a whole.
(c)
Incorporated Documents . The documents incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, at the time they were filed with the
Commission, complied or will comply, as the case may be, in all
material respects with the requirements of the Exchange
Act.
(d) Free
Writing Prospectus . The Company is not an “
ineligible issuer ” pursuant to Rule 405 under
the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed in connection with the
offering of the Shares, or is required to file in connection with
the offering of the Shares, pursuant to Rule 433(d) under the
Securities Act complies or will comply in all material respects
with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Annex A hereto,
the Company has not prepared, used or referred to, any free writing
prospectus in connection with the offering of the
Shares.
(e)
Organization and Good Standing . The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate
4
power and
authority to own, lease and operate its property and to conduct its
business as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or
otherwise), business, properties or results of operations of the
Company and its consolidated subsidiaries, taken as a whole (a
“United Material Adverse Effect”).
(f)
Subsidiaries . Each of the Company’s subsidiaries
listed on Schedule 2 hereto (together, the
“Subsidiaries”) has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a United Material Adverse Effect; all of the issued and
outstanding capital stock of each Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable;
and, except as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, each Subsidiary’s capital
stock is owned by the Company, directly or through subsidiaries,
and is owned free from liens, encumbrances and defects.
(g) No
Default or Conflict . The Company is not in default in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party
or by which it may be bound or to which any of its properties may
be subject, except for any such defaults that would not have a
United Material Adverse Effect. The execution, delivery and
performance of this Agreement, the consummation by the Company of
the transactions contemplated herein and the issuance and delivery
of the Shares have been duly authorized by all necessary corporate
action of the Company and will not result in (i) any breach of
any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to any indenture, loan agreement, contract, mortgage,
note, lease or other instrument to which the Company is a party or
by which the Company may be bound or to which any of the property
or assets of the Company is subject, (ii) any violation of the
provisions of the charter or by-laws of the Company or
(iii) any violation of any statute, any rule, regulation,
judgment, or order or decree of any government, governmental agency
or body or court, domestic or foreign, having jurisdiction over the
Company, except, in the case of clause (i) and (iii), for any such
breach, default, lien, charge, encumbrance or violation as would
not have a United Material Adverse Effect.
(h) No
Consents Required . No consent, approval, authorization, or
order of, or filing with, any governmental agency or body or any
court is required for the valid authorization, execution and
delivery by the Company of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated
herein, except such as may be required under the Securities Act,
the securities or “blue sky” or similar laws of the
various states and of foreign jurisdictions or rules and
regulations of the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
(i) This
Agreement . This Agreement has been executed and delivered by
the Company and conforms in all material respects to the
descriptions thereof contained in the Time of Sale
Prospectus.
(j) The
Shares . The Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable and
5
will conform to
the descriptions thereof contained in the Time of Sale Prospectus;
and the issuance of the Shares is not subject to any preemptive or
similar rights.
(k)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus (other than for subsequent issuances,
including restricted stock grants, if any, pursuant to employee
benefit plans described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus or upon the exercise of
outstanding options or warrants or vesting of restricted stock
units described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus or any issuance of equity securities
to directors under any current or future directors’ plans);
all the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; none of the outstanding securities of the Company
were issued in violation of the percentage limitations (without the
benefit of any transfer in trust provisions) contained in the
Company’s organizational documents, including, without
limitation, the provisions of Part VI, Section 2,
Section 3 and Section 5 of the Company’s restated
certificate dated February 1, 2006, as amended; none of the
outstanding shares of capital stock of the Company have been issued
in violation of any preemptive or similar rights of any security
holder or is subject to any preemptive or similar rights; except as
described in or expressly contemplated by the Time of Sale
Prospectus and the Prospectus, there are no outstanding rights
(including, without limitation, preemptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such
subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(l)
Financial Statements . The consolidated financial statements
of the Company incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together
with the related notes thereto, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the consolidated results of
operations and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein and except that
unaudited financial statements do not have all required
footnotes.
(m) Title
to Real and Personal Property . Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and its Subsidiaries has good and
marketable title to all real and personal properties and assets
owned by them, in each case free from liens, encumbrances and
defects except where the failure to have such title would not have
a United Material Adverse Effect; and except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and its Subsidiaries holds any
leased real or personal property under valid and enforceable leases
with no exceptions that would reasonably be expected to have a
United Material Adverse Effect.
(n) Legal
Proceedings . Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there is
no action, suit or proceeding before or by any governmental agency
or body or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company, any of
its Subsidiaries, or any of their respective properties that
individually (or in the aggregate in the case of any class of
related lawsuits), would reasonably be expected to have a United
Material Adverse Effect or that would reasonably be expected to
materially and adversely affect the consummation of the
transactions contemplated by this Agreement.
6
(o) No
Labor Dispute . No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that would reasonably be expected to have a
United Material Adverse Effect.
(p)
Licenses and Permits . Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and the Subsidiaries has all
licenses, permits, orders, consents, authorizations, approvals and
certificates of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other
tribunals, necessary to own, lease, license and use its properties
and assets and to conduct its business in the manner described in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, except to the extent that the failure to so obtain,
declare or file would not have a United Material Adverse
Effect.
(q)
Compliance with Environmental Laws . Except as disclosed in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, neither the Company nor any of its Subsidiaries is in
violation of any statute, rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances (collectively, “ environmental laws
”), owns or operates any real property contaminated with any
substance that imposes any liability under any environmental laws,
or is subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim individually or
in the aggregate is reasonably expected to have a United Material
Adverse Effect. The Company is not aware of any pending
investigation that would reasonably be expected to lead to such a
claim that would have a United Material Adverse Effect.
(r)
Independent Accountants . The accountants that examined and
issued an auditors’ report with respect to the consolidated
financial statements of the Company, and the financial statement
schedules of the Company, if any, included or incorporated by
reference in the Registration Statement, are independent public
accountants within the meaning of the Securities Act with respect
to the Company.
(s)
Investment Company Act . The Company is not an
“investment company”, or an entity
“controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended (the “Investment Company Act”), in each case
required to register under the Investment Company Act; and after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus,
the Company will not be an “investment company”, or an
entity “controlled” by an “investment
company”, as defined in the Investment Company Act, in each
case required to register under the Investment Company
Act.
(t)
Disclosure Controls . The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that complies with the requirements of the Exchange
Act and that has been designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(u)
Accounting Control . Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, the
Company (A) makes and keeps books, records and accounts,
which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the material assets of the Company
and its consolidated subsidiaries and (B) maintains a system
of internal accounting controls
7
sufficient to
provide reasonable assurances that (1) transactions are
executed in accordance with management’s general or specific
authorization; (2) transactions are recorded as necessary:
(x) to permit preparation of financial statements in
conformity with generally accepted accounting principles or any
other criteria applicable to such statements and (y) to
maintain accountability for assets; (3) access to material
assets is permitted only in accordance with management’s
general or specific authorization; and (4) the recorded
accountability for material assets is compared with the existing
material assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(v)
Listing. The Common Stock is registered pursuant to Section
12(b) of the Exchange Act, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the Nasdaq Global Select Market
(the “Nasdaq Market”) nor has the Company received any
notification that the Commission or the Nasdaq Market is
contemplating terminating such registration or listing. The
outstanding shares of the Common Stock have been approved for
listing and the Shares have been approved for listing, subject only
to official notice of issuance, on the Nasdaq Market.
(w) No
Stabilization or Manipulation. Neither the Company nor any of
its directors, officers or controlling persons has taken, directly
or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the
Shares or which otherwise is in contravention of applicable
law.
(x)
Actively Traded Security. The Common Stock is an
“actively-traded security” excepted from the
requirements of Rule 101 of Regulation M under the
Exchange Act by subsection (c)(1) of such rule.
(y) No
Broker. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim
against the Company or any of its subsidiaries for a brokerage
commission, finder’s fee or like payment in connection with
the offering and sale of the Shares.
The
parties agree that any certificate signed by a duly authorized
officer of the Company and delivered to an Underwriter, or to
counsel for the Underwriters, on the Closing Date or the Additional
Closing Date, as the case may be, and in connection with this
Agreement or the offering of the Shares, shall be deemed a
representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
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; will file promptly all reports and
any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 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 Shares; and
will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably
request. The Company will pay the
8
registration
fee for this offering within the time period required by
Rule 456(b)(1) under the Securities Act and in any event prior
to the Closing Date.
(b) Delivery of
Copies. The Company will deliver, without charge, during the
Prospectus Delivery Period (as defined below), as many copies of
the Prospectus (including all amendments and supplements thereto)
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 Shares as in the opinion of
counsel for the Underwriters a prospectus relating to the Shares 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 Shares by any Underwriter or dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before
preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Prospectus,
whether before or after the time that the Registration Statement
becomes effective, 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
prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably
object.
(d) Notice to
the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing,
(i) when the Registration Statement has become effective;
(ii) when any amendment to the Registration Statement has been
filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment
to the Prospectus has been filed; (iv) 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; (v) 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, any
of the Time of Sale Prospectus or the Prospectus or the initiation
or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (vi) of the occurrence
of any event within the Prospectus Delivery Period as a result of
which the Prospectus, the Time of Sale Prospectus 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 necessary in order to make the statements therein, in
the light of the circumstances existing when the Prospectus, the
Time of Sale Prospectus or any such Issuer Free Writing Prospectus
is delivered to a purchaser, not misleading; and (vii) 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 (viii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of
the Shares for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and the Company
will use its commercially 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, any of the Time of Sale Prospectus or the
Prospectus or suspending any such qualification of the Shares and,
if any such order is issued, will obtain as soon as possible the
withdrawal thereof.
(e) Ongoing
Compliance. (1) 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
9
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 existing when the
Prospectus is delivered to a purchaser, not misleading or
(ii) 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 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 and
(2) if at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which the
Time of Sale Prospectus as then amended or su
|
