Exhibit 1.1
R.R. Donnelley & Sons
Company
$625,000,000 5.625% Notes due
2012
$625,000,000 6.125% Notes due
2017
UNDERWRITING
AGREEMENT
dated January 3,
2007
Banc of America Securities
LLC
Citigroup Global Markets
Inc.
J.P. Morgan Securities
Inc.
Underwriting
Agreement
January 3, 2007
BANC OF AMERICA SECURITIES
LLC
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
As Representatives of the several
Underwriters named in Schedule I
hereto
c/o BANC OF AMERICA SECURITIES LLC
9 West 57 th Street
New York, NY 10019
Ladies and Gentlemen:
Introductory.
R.R. Donnelley & Sons
Company, a corporation organized under the laws of the State of
Delaware (the “Company”), proposes to issue and sell to
the several underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$625,000,000 aggregate principal amount of its 5.625% Notes due
2012 (the “2012 Notes”) and $625,000,000 aggregate
principal amount of its 6.125% Notes due 2017 (the “2017
Notes” and together with the 2012 Notes, the
“Securities”). The Securities will be issued under an
indenture (the “Base Indenture”), dated as of
January 3, 2007 as supplemented by a first supplemental
indenture between the Company and the LaSalle Bank, National
Association, as trustee (the “Trustee”) to be dated as
of the Closing Date (the “Supplemental Indenture”, and
collectively with the Base Indenture, the “Indenture”).
The use of the neuter in this Underwriting Agreement (the
“Agreement”) shall include the feminine and masculine
wherever appropriate. Certain terms used herein are defined in
Section 17 hereof.
The Company currently expects to use
the net proceeds of the offering and sale of the Securities to
finance its acquisition (“Acquisition”) of Banta
Corporation (“Banta”), as described in the Prospectus
(as defined below). In the event that (i) the Acquisition is
not completed by March 31, 2007 (the “Deadline
Date”) or (ii) the Merger Agreement, dated
October 31, 2006, among the Company, Banta, and Soda
Acquisition, Inc. (the “Merger Agreement”), is
terminated on or prior to the Deadline Date, the Indenture will
require that the Company redeem all of the Securities pursuant to a
mandatory redemption at a price equal to 101% of the aggregate
principal amount of the Securities, plus accrued and unpaid
interest.
The Company hereby confirms that it
has authorized the use of any preliminary prospectus, the
Prospectus (as defined below), any Issuer Free Writing Prospectus
(as defined below) and any amendment or supplement thereto, in
connection with the initial offer and sale of the Securities by the
Underwriters. Unless stated to the contrary, any references herein
to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement
(as defined below) shall be deemed to refer to and include any
information filed under the Exchange Act subsequent to the
Execution Time and prior to the completion of the initial
distribution of the Securities and any references to
“amend”, “amendment” or
“supplement” with respect to any preliminary prospectus
(as defined below) or the Prospectus shall be de deemed to refer to
and include any information filed under the Exchange Act subsequent
to the date of such document and prior to the completion of the
initial distribution of the Securities.
1. Representations and
Warranties . The Company represents and warrants to each
Underwriter as of the date hereof that:
(a) Registration Statement.
The Company has prepared and filed with the Commission a
registration statement on Form S-3 (File No. 333-139756),
which contains a base prospectus (the “Base
Prospectus”), to be used in connection with the public
offering and sale of the Securities. Such registration statement,
as amended, including the financial statements, exhibits and
schedules thereto, at each time of effectiveness under the
Securities Act, including any required information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act or the Securities Exchange Act, is called
the “Registration Statement.” Any preliminary
prospectus supplement, including the Base Prospectus, is hereafter
called a “preliminary prospectus.” The term
“Prospectus” shall mean the prospectus supplement
relating to the Securities, including the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the Execution Time. Any
reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act.
(b) Compliance with Registration
Requirements . The Registration Statement has become effective
upon filing with the Commission under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement is
in effect, the Commission has not issued any order or notice
preventing or suspending the use of the Registration Statement, any
preliminary prospectus or the Prospectus and no proceedings for
such purpose have been instituted or are pending or, to the best
knowledge of the Company, are contemplated or threatened by the
Commission.
Each of the preliminary prospectus
and the Prospectus when filed complied in all material respects
with the Securities Act and the rules thereunder. Each of the
Registration Statement and any post-effective amendment thereto, at
each time of effectiveness and at the date hereof, complied and
will comply in all material respects with the Securities Act and
did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading. The Prospectus, as amended or supplemented, as of its
date, at the date hereof, at the time of any filing pursuant to
Rule 424(b) and, at the Closing Date (as defined herein), did not
and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties
set forth in the two immediately preceding sentences do not apply
to statements in or omissions from the Registration Statement or
any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in
conformity with information furnished in writing to the Company by
any Underwriter expressly 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 7(b) hereof. There is no contract or other document
required to be described in the Prospectus or to be filed as an
exhibit to the Registration Statement that has not been described
or filed as required.
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The documents incorporated by
reference in the Disclosure Package (as defined below) and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable. Any further documents so filed and incorporated by
reference in the Disclosure Package and the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable.
(c) Well-Known Seasoned
Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of
the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer relating to
the Securities in reliance on the exemption of Rule 163 of the
Securities Act, and (iv) at the Execution Time (with such
date being used as the determination date for purposes of this
clause (iv)), the Company was and is a “well-known seasoned
issuer” and not an “ineligible issuer”, each as
defined in Rule 405 of the Securities Act. The Registration
Statement is an “automatic shelf registration
statement”, as defined in Rule 405 of the Securities
Act, and the Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the Securities Act objecting
to use of the automatic shelf registration statement
form.
(d) Disclosure Package. The
term “Disclosure Package” shall mean (i) any
preliminary prospectus, (ii) the issuer free writing
prospectuses as defined in Rule 433 of the Securities Act (each, an
“Issuer Free Writing Prospectus”), if any, identified
in Schedule II hereto, (iii) any other free writing prospectus
that the parties hereto shall hereafter expressly agree in writing
to treat as part of the Disclosure Package and (iv) the Final
Term Sheets (as defined herein), which also shall be identified in
Schedule II hereto. As of the Applicable Time, the Disclosure
Package did 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 information furnished in writing
to the Company by any Underwriter expressly 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 7(b) hereof.
(e) Issuer Free Writing
Prospectuses. Neither any Issuer Free Writing Prospectus nor
either of the Final Term Sheets, as of its issue date and at all
subsequent times through the completion of the offering of
Securities under this Agreement or until any earlier date that the
Company notified or notifies the Representatives as described in
the next sentence, did not, does not and will not include any
information that conflicted, conflicts
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or will conflict with the
information contained in the Registration Statement, any
preliminary prospectus or the Prospectus. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, any
preliminary prospectus or the Prospectus, the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with information
furnished in writing to the Company by any Underwriter expressly
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 7(b)
hereof.
(f) Distribution of Offering
Material by the Company. The Company has not distributed and
will not distribute, prior to the later of the Closing Date and the
completion of the Underwriters’ distribution of the
Securities, any offering material in connection with the offering
and sale of the Securities other than the Prospectus, any
preliminary prospectus, any Issuer Free Writing Prospectus reviewed
and consented to by the Representatives and included in Schedule II
hereto or the Registration Statement (as any of such may be amended
by any document filed pursuant to the Exchange Act).
(g) No Applicable Registration or
Other Similar Rights. There are no persons with registration or
other similar rights to have any equity or debt securities included
in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
(h) Material Adverse Change.
Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or
interference with its business which is material to the Company and
its subsidiaries considered as one enterprise from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Disclosure Package; and, since the respective dates as of which
information is given in the Disclosure Package, there has not been
any change in the capital stock (other than issuances of common
stock pursuant to existing employee benefit or stock option plans,
repurchases by the Company of its common stock in the ordinary
course of business or conversions of outstanding convertible
securities) or long-term debt (other than changes as a result of
maturities, sinking fund payments, amortization of debt discount or
currency fluctuations) of the Company or any of its subsidiaries or
any material adverse change, or any development which will result
in a material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or
contemplated in the Disclosure Package.
(i) Incorporation and Good
Standing of the Company and its Subsidiaries . The Company has
been duly incorporated and is validly existing as a corporation in
good
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standing under the laws of the State
of Delaware, with corporate power and authority under such laws to
own, lease and operate its properties and to conduct its business
as described in the Disclosure Package and the Prospectus; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction where the
character of the business conducted by it or the location of the
property owned by it makes such qualification necessary, except
where the failure to be so qualified would not have a material
adverse effect on the Company and its subsidiaries considered as
one enterprise. Each subsidiary of the Company that is a
significant subsidiary within the meaning of Rule 1-02 of
Regulation S-X under the Securities Act (such subsidiaries
collectively, the “Significant Subsidiaries”) has been
duly organized, is validly existing and, to the extent
applicable, is in good standing under the laws of the state or
jurisdiction of its organization, and each has the power and
authority under such laws to own, lease and operate its properties
and to conduct its business, and is duly qualified as a foreign
entity to transact business and, to the extent
applicable, is in good standing in each jurisdiction where the
character of the business conducted by it or the location of the
property owned by it makes such qualification necessary, except
where the failure to be so qualified would not have a material
adverse effect on the Company and its subsidiaries considered as
one enterprise. The Company, directly or indirectly, owns all of
the issued and outstanding voting securities of each of the
Significant Subsidiaries, in each case free and clear of any liens,
encumbrances and claims, except for any liens, encumbrances and
claims that would not have a material adverse effect on the Company
and its subsidiaries considered as one enterprise.
(j) Capitalization and other
Capital Stock Matters . The Company has an authorized
capitalization as set forth in the Disclosure Package and the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable.
(k) The Securities and the
Indenture. The Securities have been duly authorized by the
Company for issuance and sale pursuant to this Agreement and the
Indenture, and when executed and delivered by the Company and
authenticated by the Trustee in accordance with the provisions of
the Indenture and paid for by the Underwriters will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; the Indenture has been duly
authorized and when executed and delivered by the Company, will
constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except that the
enforcement thereof may be limited by bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), moratorium or other laws relating to or
affecting creditors’ rights and remedies generally and except
as enforcement thereof is subject to equitable principles
regardless of whether enforcement is considered in a proceeding at
law or in equity; and the Securities and each of the Indenture will
conform to the description thereof contained in the Disclosure
Package and the Prospectus.
(l) Compliance of the Issue and
Sale of the Securities . The issue and sale by the Company of
the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement with
respect to the Securities, and the consummation of the transactions
herein and therein contemplated, will not conflict
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with or result in a breach of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or
any of its subsidiaries under, any agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (except for conflicts, breaches, defaults, liens, charges
and encumbrances which would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise), nor will such action result in any
violation of the provisions of the Certificate or Articles of
Incorporation, as amended, or the By-Laws of the Company or any of
its subsidiaries or any statute, order, rule or regulation
applicable to the Company or any of its subsidiaries of any court
or of any Federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company or any of
its subsidiaries; no authorization, approval, consent,
registration, qualification or order of or with any court or any
such regulatory authority or other governmental agency or body is
required for issue and sale of the Securities by the Company or the
consummation by the Company of the other transactions contemplated
by this Agreement or the Indenture, except such as have been, or
will have been prior to the Closing Date, obtained under the
Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(m) No Material Actions or
Proceedings . Except as set forth in the Disclosure Package and
the Prospectus, there are no actions, suits or proceedings before
or by any court or governmental agency or body, domestic or
foreign, pending or, to the knowledge of the Company, threatened
against or, to the knowledge of the Company, affecting the Company
or any of its subsidiaries which are, individually or in the
aggregate, reasonably expected to result in any material adverse
change in the general affairs, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, considered as one enterprise, or which are
reasonably expected to materially and adversely affect the
consummation by the Company of the transactions contemplated by
this Agreement or the issuance and sale by the Company of the
Securities
(n) Authorization . This
Agreement has been duly authorized, executed and delivered by the
Company.
(o) Independent Registered Public
Accounting Firm . Deloitte & Touche LLP, who have
reported upon the audited financial statements and schedules
included or incorporated by reference in the Disclosure Package and
the Prospectus, are an independent registered public accounting
firm as required by the Act and the rules and regulations of the
Commission thereunder.
(p) Preparation of Financial
Statements . The consolidated financial statements included or
incorporated by reference in the Disclosure Package and the
Prospectus present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries, as of the
dates indicated, and the corresponding consolidated results of the
operations and cash flows for the periods specified. Such financial
statements
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(except as disclosed in the notes
thereto or otherwise stated therein) have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the entire period involved. The
financial statement schedules, if any, included or incorporated by
reference in the Disclosure Package and the Prospectus present
fairly in all material respects the information required to be
stated therein. The selected financial data included or
incorporated by reference in the Disclosure Package and the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Disclosure Package and the
Prospectus.
(q) Compliance with
Agreements . Neither the Company nor any of the Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which
the Company or any of the Significant Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, other than defaults (considered in the
aggregate) which do not have, or which would not reasonably be
expected to result in, a material adverse effect on the general
affairs, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, considered as
one enterprise.
(r) No Further Authorizations or
Approvals Required . The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by the
appropriate Federal, state or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit, with such exceptions as would
not, singly or in the aggregate, materially and adversely affect
the general affairs, financial position, stockholders’ equity
or results of operations of the Company and its subsidiaries,
considered as one enterprise.
(s) Company Not an
“Investment Company” . The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be an
“investment company” as defined in the Investment
Company Act.
(t) No Restrictions on
Dividends . No Significant Subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such Significant Subsidiary’s capital stock, from repaying to
the Company any loans or advances to such Significant Subsidiary
from the Company or from transferring any of such Significant
Subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the Disclosure Package and the Prospectus.
(u) Compliance with Environmental
Laws . The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous
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or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses, and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise except as set forth in
or contemplated in the Disclosure Package and the Prospectus.
Except as set forth in the Disclosure Package and the Prospectus or
as may not, individually or in the aggregate, reasonably be
expected to result in any material adverse change in the general
affairs, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, considered as
one enterprise, neither the Company nor any of the subsidiaries has
been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the closing of the
offering of the Securities shall be deemed a representation and
warranty by the Company as to matters covered thereby, to each
Underwriter set forth therein.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, on the Closing
Date 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 99.26% of the principal amount of
the 2012 Notes thereof and a purchase price of 98.56% of the
principal amount of the 2017 Notes plus, in each case, accrued
interest, if any, from January 8, 2007 to the Closing Date,
the principal amount of Securities set forth opposite such
Underwriter’s name in Schedule I hereto.
3. Delivery and Payment
.
(a) Delivery of and payment for the
Notes shall be made at 10:00 A.M., New York City time, on
January 8, 2007, which date and time may be postponed by
agreement between the Representatives and the Company (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 of the purchase price thereof to or upon the order of
the Company by wire transfer payable in the 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
(“DTC”), or its designated custodian, unless the
Representatives shall otherwise instruct.
(b) Not later than 10:00 a.m. on the
second Business Day following the date the Securities are first
released by the Underwriters for sale to the public, the Company
shall deliver or cause to be delivered, copies of the Prospectus in
such quantities and at such places as the Representatives shall
reasonably request.
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4. Covenants . The Company
covenants and agrees with each of the Underwriters as
follows:
(a) Representatives Review of
Proposed Amendments and Supplements. During the period
beginning on the Applicable Time and ending on the later of the
Closing Date or such date on which the Prospectus is no longer
required by law to be delivered in connection with sales by an
Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 (the
“Prospectus Delivery Period”), prior to amending or
supplementing the Registration Statement, the Disclosure Package or
the Prospectus other than as a result of an Exchange Act filing,
the Company shall furnish to the Representatives for review a copy
of each such proposed amendment or supplement, and the Company
shall not file or use any such proposed amendment or supplement to
which the Representatives reasonably object; provided however, that
the Company will not file any document under the Exchange Act that
is incorporated by reference in the Registration Statement or
Prospectus, unless, prior to the Closing Date or the termination of
the Prospectus Delivery Period, as applicable, the Company has
furnished the Representatives with a copy of such document for
their review and the Representatives have not reasonably objected
to the filing of such document.
(b) Securities Act
Compliance. After the date of this Agreement and during the
Prospectus Delivery Period, the Company shall promptly advise the
Representatives in writing (i) of the receipt of any comments
of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any
post-effective amendment to the Registration Statement or any
amendment or supplement to any preliminary prospectus or the
Prospectus, (iii) of the time and date that any post-effective
amendment to the Registration Statement becomes effective, and
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order or notice preventing or suspending the use of the
Registration Statement, any preliminary prospectus or the
Prospectus, or of any receipt by the Company of any notification
with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or of the threatening or
initiation of any proceedings for any of such purposes. The Company
shall use commercially reasonable efforts to prevent the issuance
of any such stop order or notice of prevention or suspension of
such use. If the Commission shall enter any such stop order or
issue any such notice at any time, the Company will use
commercially reasonable efforts to obtain the lifting or reversal
of such order or notice at the earliest possible moment, or,
subject to Section 4(a), will file an amendment to the
Registration Statement or will file a new registration statement
and use its best efforts to have such amendment or new registration
statement declared effective as soon as practicable. Additionally,
the Company agrees that it shall comply with the provisions of
Rules 424(b) and 430B, as applicable, under the Securities Act,
including with respect to the timely filing of documents
thereunder, and will use commercially reasonable efforts to confirm
that any filings made by the Company under such Rule 424(b) were
received in a timely manner by the Commission.
(c) Exchange Act Compliance.
During the Prospectus Delivery Period, the Company will file all
documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act in the manner and
within the time periods required by the Exchange Act;
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(d) Final Term Sheets. The
Company will prepare a final term sheet for the Securities
containing solely a description of the relevant Securities,
including the price at which the Securities are to be sold to the
public, in a form approved by the Representatives and contained in
Schedule III hereto, and will file such term sheets pursuant to
Rule 433(d) under the Securities Act within the time required by
such rule (such term sheets, the “Final Term
Sheets”).
(e) Permitted Free Writing
Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the
Securities that constitutes or would constitute an Issuer Free
Writing Prospectus or that otherwise constitutes or would
constitute a “free writing prospectus” (as defined in
Rule 405 of the Securities Act) or a portion thereof required to be
filed by the Company with the Commission or
