Exhibit 1.1
SOUTHWEST AIRLINES CO.
5 3/4% Notes due 2016
UNDERWRITING AGREEMENT
December 11, 2006
Barclays
Capital Inc.
200 Park
Avenue
New York, New
York 10166
Citigroup
Global Markets Inc.
388 Greenwich
Street
New York, New
York 10013
As the
Representatives of the several Underwriters
Ladies and
Gentlemen:
Southwest Airlines Co., a Texas corporation (the
“Company”), proposes to issue and sell to the
underwriters named in Schedule I hereto $300,000,000 aggregate
principal amount of its debt securities (the
“Securities”) with the interest rate and date of
maturity set forth on Schedule I hereto on the terms and conditions
stated herein. The Securities will be issued under an indenture
dated as of September 17, 2004 (the “Indenture”)
between the Company and Wells Fargo Bank, N.A., as Trustee. As used
herein, unless the context otherwise requires, the term
“Underwriters” shall mean the firms named as
Underwriters in Schedule I, and the term “you” shall
mean Barclays Capital Inc. and Citigroup Global Markets Inc. Terms
not otherwise defined herein shall have the meanings specified in
the Indenture. For purposes hereof, the term “Operative
Agreements” shall mean, collectively, this Agreement, the
Indenture and the Securities.
The Company understands that the Underwriters
propose to make a public offering of the Securities as soon as the
Underwriters deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and
Exchange Commission (the “Commission”) a registration
statement on Form S-3 (No. 333-100861), including the related
preliminary prospectus or prospectuses, which registration
statement has been declared effective by the Commission and the
Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the “1939 Act”). Such registration
statement covers the registration of the Securities under the
Securities Act of 1933, as amended (the “1933 Act”).
Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the
provisions of paragraph (b) of Rule 424 (“Rule 424(b)”)
of the of the rules and regulations of the Commission (the
“1933 Act Regulations”) under the 1933 Act. Such
registration statement as amended to the date of this Agreement,
including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to
Rule 430A or Rule 430B under the 1933 Act and the documents
incorporated therein pursuant to Part I, Item 12 of Form S-3 as of
its most recent effective date, is hereinafter referred to as the
“Registration Statement,” and the related base
prospectus in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters
by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act), including the documents incorporated
therein pursuant to Part I, Item 12 of Form S-3 as of such date, is
hereinafter referred to as the “Base Prospectus.” The
Base Prospectus, as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to
confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act),
including the documents incorporated therein pursuant to Part I,
Item 12 of Form S-3 as of such date of such prospectus or
prospectus supplement, is hereinafter referred to as the
“Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the
Prospectus.
For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”).
All references in this Agreement to financial
statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by the 1933 Act Regulations to be
a part of or included in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement, any 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
“1934 Act”), which is incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
1. Representations and Warranties . (a)
The Company represents and warrants to each Underwriter as of the
date hereof and agrees with each Underwriter that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Texas and has the corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the General Disclosure
Package (as defined in Section 1(a)(ii) below) and the Prospectus;
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where those
failures to so qualify in the aggregate would not have a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its
consolidated subsidiaries taken as a whole (a “Material
Adverse Effect”).
(ii) The Company meets the requirements for the use
of Form S-3 under the 1933 Act Regulations. At the time of first
filing of the Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of the 1933
Act Regulations) of the Securities and at the date hereof, the
Company was not and is not an “ineligible issuer,” as
defined in Rule 405. No stop order suspending the effectiveness of
the Registration Statement has been issued, and, to the
Company’s knowledge, no proceedings for that purpose have
been initiated or threatened by the Commission and any request on
the part of the Commission for additional information has been
complied with.
At the respective times the first filing of the
Registration Statement and each amendment thereto became effective,
at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the
Closing Time, the Registration Statement complied and will comply
in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations, and the 1939 Act and the rules and
regulations of the Commission thereunder (the “Trust
Indenture Regulations”) and did 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.
Neither the Prospectus nor any amendments or
supplements thereto, as of its date, at the time the Prospectus or
any such amendment or supplement is first filed in accordance with
Rule 424(b), and at the Closing Time, included or will include
an untrue statement of a material fact or omitted or will 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.
Each preliminary prospectus
(including the prospectus or prospectuses filed as part of the
first filing of the Registration Statement or any amendment
thereto) complied when so filed in all material respects with the
1933 Act Regulations (after taking into account the information
permitted to be omitted pursuant to Rules 430B and 430C of the 1933
Act Regulations, as applicable) and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection
with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
As of the Applicable Time, neither (x) the
Issuer General Use Free Writing Prospectus(es) (as defined below)
issued as of or prior to the Applicable Time, the Statutory
Prospectus (as defined below) and the Final Term Sheet (as defined
below), all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited
Use Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted 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.
As used in this subsection and elsewhere in this
Agreement:
“Applicable Time” means 4:54 p.m.
(Eastern time) on December 11, 2006 or such other time as agreed by
the Company and the Representative.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”),
relating to the Securities.
“Issuer General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as
evidenced by its being specified in Schedule III hereto.
“Issuer Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is
not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” means the
Base Prospectus, as supplemented immediately prior to the
Applicable Time including any document incorporated by reference
therein as of the date of such supplement.
Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representative as
described in Section 3(e), did not, does not and will not include
any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, any
preliminary prospectus relating to the Securities, the Statutory
Prospectus, the General Disclosure Package or the Prospectus,
including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part thereof that
has not been superseded or modified.
The representations and warranties in this
Section 1(a)(ii) shall not apply to statements in or omissions from
the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus (or any amendment or supplement thereto), made
in reliance upon and in conformity with information furnished to
the Company in writing by the Representative expressly for use
therein Prospectus or to that part of the Registration Statement
which constitutes the Trustee’s Statement of Eligibility and
Qualification under the 1939 Act (Form T-1).
(iii) The documents incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus, 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 1934 Act and the rules and regulations
promulgated thereunder (the “1934 Act Regulations”),
and, when read together and with the other information in the
Prospectus and the General Disclosure Package, at the time the
Registration Statement and any amendments thereto became effective,
at the time the Prospectus was first filed with the Commission in
accordance with Rule 424(b), at the Applicable Time and at the
Closing Time, 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, in the light of the circumstances under which they were or
are made, not misleading.
(iv) The consolidated financial statements of the
Company included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly in all material respects the consolidated financial
position of the Company as of the dates indicated and the results
of operations, changes in stockholders’ equity and cash flows
of the Company, for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied,
except as stated therein, on a consistent basis throughout the
entire period involved; and the financial schedules included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus meet the requirements
of the 1933 Act Regulations or the 1934 Act Regulations, as
applicable, and fairly present the information required to be shown
therein. The selected consolidated financial data incorporated by
reference in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited consolidated financial statements incorporated by
reference in the Registration Statement and the
Prospectus.
(v) Except as stated in or contemplated by the
General Disclosure Package or the Prospectus, subsequent to the
date of the most recent financial statements included or
incorporated in the General Disclosure Package and the Prospectus,
there has not been any material adverse change in the business,
properties, financial condition, results of operations or prospects
of the Company and its consolidated subsidiaries taken as a whole
(a “Material Adverse Change”).
(vi) The Company is a “citizen of the United
States” within the meaning of Section 40102(a)(15)(C) of
Title 49, U.S.C. and is a holder of an “air carrier operating
certificate” issued by the Secretary of Transportation
pursuant to Chapter 447 of Title 49, U.S.C. for aircraft capable of
carrying 10 or more individuals or 6,000 pounds or more of
cargo.
(vii) This Agreement has been duly authorized,
executed and delivered by the Company.
(viii)
The Indenture has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by
the Trustee, is a valid and
binding agreement of, the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may
be
limited by
bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws now or hereafter in
effect relating to creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law). The Indenture has
been duly qualified under the 1939 Act
(ix)
The Securities have been duly
authorized by the Company and when duly authenticated by the
Trustee and executed and delivered in the manner provided for in
the Indenture and sold and paid for as provided in this Agreement,
the Securities will be legally and validly executed, issued and
delivered and will be valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(x) The execution, delivery and performance of the
Operative Agreements and the consummation of the transactions
contemplated herein and in the General Disclosure Package and the
Prospectus and compliance by the Company with its obligations
hereunder and thereunder do not and will not conflict with or
result in a breach of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any assets or properties of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the assets
or properties of the Company or any of its subsidiaries is subject,
the result of which could reasonably be expected to have a Material
Adverse Effect, nor will such action result in any violation of (i)
the provisions of the charter or bylaws of the Company or any of
its Subsidiaries or (ii) any applicable law or statute or any
order, rule, regulation or judgment of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations,
except, with respect to (ii) above, for any such violations that
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(xi) No authorization, approval, consent, order or
license of or filing with or notice to any government, governmental
instrumentality or court, domestic or foreign, is required on
behalf of the Company for (i) the valid authorization,
issuance, sale and delivery of the Securities, (ii) the valid
authorization, execution, delivery and performance by the Company
of the Operative Agreements, or (iii) the consummation by the
Company of the transactions contemplated by the Operative
Agreements, except such as are required under the 1933 Act, the
1934 Act, the 1939 Act and the securities or blue sky or similar
laws of the various states and of foreign jurisdictions.
(xii) Except as disclosed in the General Disclosure
Package or 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 or 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), could reasonably be
expected to result in a Material Adverse Effect or that could
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or
the other Operative Agreements.
(xiii) Except as disclosed in the General Disclosure
Package or the Prospectus, no union contract dispute respecting the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that, in either case, could
reasonably be expected to have a Material Adverse
Effect.
(xiv) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits 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, and is in compliance with all statutes and regulations
as required, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
General Disclosure Package and the Prospectus, except to the extent
that the failure to so obtain, declare, file or comply would not
have a Material Adverse Effect.
(xv) Except as disclosed in the General Disclosure
Package or the Prospectus, (x) to the knowledge of the
Company, 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
is subject to 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 Material Adverse Effect, and (y) the
Company is not aware of any pending investigation which might lead
to such a claim that is reasonably expected to have a Material
Adverse Effect.
(xvi) Except as disclosed in the General Disclosure
Package or the Prospectus, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in
default (nor has any event occurred which with notice or lapse of
time or both would constitute a default or acceleration) in the
performance of any obligation, agreement or condition contained in
any indenture, mortgage, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their respective
properties is bound or affected and none of the Company or any of
its subsidiaries is in violation of any judgment, ruling, decree,
order, franchise, license or permit or any statute, rule or
regulation applicable to the business or properties of any of the
Company or any of its subsidiaries, except for such violations or
defaults which do not have a Material Adverse Effect.
(xvii) The Company carries, or is covered by, insurance
in such amounts and covering such risks as is customary for major
U.S. airlines operating similar flight equipment over similar
routes.
(xviii) The accountants that examined and issued an
auditors’ report with respect to the consolidated financial
statements of the Company and the financial statement schedules, if
any, included or incorporated by reference in the Registration
Statement are independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(xix) 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”) required to register under the Investment
Company Act; and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the General Disclosure Package and 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, required
to register under the Investment Company Act.
(xx) This Agreement and the other Operative
Agreements will, upon execution and delivery thereof, conform in
all material respects to the descriptions thereof contained in the
General Disclosure Package and the Prospectus.
(xxi) Since the date of the most recent balance sheet
of the Company audited by the accountants whose auditors’
report was included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus and the audit committee of the Company’s board of
directors, (i) the Company has not been advised of (A) any
significant deficiencies in the design or operation of internal
controls that are reasonably likely to adversely affect the ability
of the Company to record, process, summarize and report financial
data, or any material weaknesses in internal controls (whether or
not remediated) and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the internal controls of the Company, and (ii) since that date,
there have been no changes in internal controls that have
materially affected, or are reasonably likely to materially affect,
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(xxii) Except as may be set forth in the Registration
Statement, the General Disclosure Package and the Prospectus, the
Company maintains required “disclosure controls and
procedures” (as defined in Rules 13a-15(e) and 15d-15(e)
under the 1934 Act) and the Company’s “disclosure
controls and procedures” are designed to reasonably ensure
that material information (both financial and non-financial)
required to be disclosed by the Company in the reports that it
files or furnishes under the 1934 Act is communicated to the
Company’s management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications of the
Chief Executive Officer and Chief Financial Officer of the Company
required under the 1934 Act with respect to such
reports.
(b) Any certificate signed by any officer of the
Company and delivered to you or to counsel for the Underwriters in
connection with an offering of the Securities shall be deemed a
representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on
the date of such certificate unless subsequently amended or
supplemented subsequent thereto. None of the foregoing applies to
statements in or omissions from any of the aforementioned documents
based upon written information furnished to the Company by any
Underwriter specifically for use therein.
2. Purchase and Sale . Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein,
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 of 98.884% of the principal amount
thereof, the aggregate principal amounts of such Securities set
forth opposite the name of such Underwriter in Schedule I hereto,
together with interest thereon, if any, from December 14, 2006, if
closing occurs thereafter.
3. Delivery and Payment . Payment of the purchase price for any
Securities to be purchased by the Underwriters shall be made at the
offices of the Company, 2702 Love Field Drive, Dallas, Texas 75235,
or at such other place as shall be agreed upon by you and the
Company, at 9:00 A.M., New York time, on the third
business day (unless postponed in
accordance with the provisions of Section 10) following the date
hereof or at such other date, time or location as otherwise shall
be agreed upon by you and the Company (such time being referred to
as the “Closing Time” and such date being referred to
as the “Closing Date”). Unless otherwise specified,
delivery of the Securities shall be made to The Depository Trust
Company for your account against payment by you to the Company of
the purchase price thereof by wire transfer of Federal funds or
other immediately available funds. Such Securities shall be
registered in the form of a single global certificate in the name
of Cede & Co. or in such other names, and in such
denominations, as you may request in writing at least two business
days prior to the Closing Date. The Company agrees to have the
Securities available for inspection by you at its offices in
Dallas, Texas, not later than 5:00 P.M. on the business day prior
to the Closing Date.
(b)
It is understood that each
Underwriter has authorized you, on its behalf and for its account,
to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase.
You, individually and not as a representative, may (but shall not
be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose check or checks
shall not have been received by the Closing Time.
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
Prospectus.
5. Agreements . The Company covenants
with each Underwriter that:
(a) Immediately following the execution of this
Agreement and subject to paragraph (c) below, the Company will
cause the Prospectus containing the information omitted in reliance
upon Rule 430B, and any supplement thereto, to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed (without reliance on Rule 424(b)(8)), and will furnish
to the Underwriters named therein as many copies of the Prospectus
as you shall reasonably request.
(b) The Company will notify
you immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission
for filing of any supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act that will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, and (v) or any order
preventing or suspending the use of any preliminary prospectus, or
of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(e) of the 1933
Act concerning the Registration Statement, (vi) if the Company
becomes the subject of a proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities and (vii) 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 stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as possible. The Company will
file the pricing term sheet attached hereto as Schedule II (the
“Final Term Sheet”) pursuant to Rule 433(d) under the
1933 Act within the time required by such Rule and will file
promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the 1933
Act.
(c) For so long as a Prospectus is required to be
delivered in connection with the Securities (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172), the Company will give you notice of its intention to
file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish you with copies of any such amendment or supplement or
other documents proposed to be filed or prepared a reasonable time
in advance of such proposed filing or preparation, as the case may
be.
(d) The Company will deliver to you as many signed
and conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as you may reasonably
request. The Company will furnish to you as many copies of the
Prospectus (as amended or supplemented) as you shall reasonably
request, so long as you are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the
Securities.
(e) If, at any time prior to the filing of the
Prospectus pursuant to Rule 424(b), any event occurs as a result of
which the General 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 at such time not
misleading, the Company will (i) notify promptly the Representative
so that any use of the General Disclosure Package may cease until
it is amended or supplemented; (ii) subject to paragraph (c) above
, amend or supplement the General 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.
(f) If at any time when the Prospectus is required
by the 1933 Act to be delivered in connection with sales of the
Securities (including in circumstances where such requirement may
be satisfied pursuant to Rule 172) any event shall occur or
condition exist as a result of which it is necessary to further
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it
shal
