Exhibit
1.1
EXECUTION
VERSION
$
30,000,000
Madison Gas and
Electric Company
5.25% Medium-Term
Notes due 2017
Underwriting
Agreement
December 22,
2006
J.P. Morgan Securities
Inc.
c/o J.P. Morgan
Securities Inc.
270 Park
Avenue
New York, New York
10017
Ladies and
Gentlemen:
Madison Gas and
Electric Company, a Wisconsin corporation (the
“Company”), proposes to issue and sell to you, as
Underwriter (the “Underwriter”), $30,000,000 principal
amount of its 5.25% Medium-Term Notes due 2017 (the
“Securities”). The Securities will be issued
pursuant to an Indenture dated as of September 1, 1998 (the
“Indenture”) between the Company and The Bank of New
York Trust Company, N.A. (successor to Bank One, N.A.), as trustee
(the “Trustee”).
The Company hereby
confirms its agreement with the Underwriter concerning the purchase
and sale of the Securities, 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”), a registration statement on Form S-3 (File No.
333-135401), including a prospectus, relating to the Securities.
Such registration statement, as amended at the time it became
effective, including the information, if any, deemed pursuant to
Rule 430B 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”; 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 Securities. Any reference in this Agreement to
the Registration Statement, any Preliminary Prospectus (as defined
below) 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
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 (as defined below) 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 time
when sales of the Securities were first made (the “Time of
Sale”), the Company had prepared the following information
(collectively, the “Time of Sale Information”): the
preliminary prospectus supplement, including the base prospectus,
as amended and supplemented to the Time of Sale (the
“Preliminary Prospectus”), the final term sheet
contemplated by Section 4(a) hereof and any “issuer free
writing prospectus” (as defined pursuant to Rule 405 under
the Securities Act) listed on Annex B hereto as constituting part
of the Time of Sale Information.
2.
Purchase of the
Securities by the Underwriter . (a) The Company
agrees to issue and sell the Securities to the Underwriter as
provided in this Agreement, and the Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees to purchase from
the Company the principal amount of Securities set forth opposite
such Underwriter's name in Schedule 1 hereto at a price equal to
99.077% of the principal amount thereof. The Company will not
be obligated to deliver any of the Securities except upon payment
for all the Securities to be purchased as provided
herein.
(b)
The Company understands
that the Underwriter intends to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in
the judgment of the Underwriter is advisable, and initially to
offer the Securities on the terms set forth in the Prospectus.
The Company acknowledges and agrees that the Underwriter may
offer and sell Securities to or through any affiliate and that any
such affiliate may offer and sell Securities purchased by it to or
through the Underwriter.
(c)
Payment for and
delivery of the Securities will be made at the offices of Sidley
Austin LLP, One South Dearborn Street, Chicago, Illinois
60603 at 10:00 A.M., New York City time, on December 29,
2006, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the
Underwriter and the Company may agree upon in writing. The
time and date of such payment and delivery is referred to herein as
the “Closing Date”.
(d)
Payment for the
Securities shall be made by wire transfer in immediately available
funds to the account(s) specified by the Company to the Underwriter
against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriter, of one or more global notes
representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with
the sale of the Securities duly paid by the Company. The
Global Note will be made available for
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inspection by the
Underwriter not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.
(e)
The Company
acknowledges and agrees that the Underwriter is acting solely in
the capacity of an arm’s length contractual counterparty to
the Company with respect to the offering of Securities 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, the
Underwriter is not 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 Underwriter shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriter of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and
shall not be on behalf of the Company.
3.
Representations and
Warranties of the Company . The Company represents and
warrants to the Underwriter that:
(a)
Preliminary
Prospectus. No order preventing or
suspending the use of the Preliminary Prospectus has been issued by
the Commission, and the Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the
Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
any Preliminary Prospectus.
(b)
Time of Sale
Information . The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has
been omitted from the Time of Sale Information and no statement of
material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted
therefrom.
(c)
Issuer
Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriter in their capacity as
such) has not prepared,
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made, used, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an
offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and
representatives (other than a communication referred to in clauses
(i), (ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act, (ii) the Preliminary Prospectus,
(iii) the Prospectus, (iv) the documents listed on Annex B hereto
as constituting the Time of Sale Information and (v) any electronic
road show or other written communications, in each case approved in
writing in advance by the Representative. Each such Issuer
Free Writing Prospectus complied in all material respects with the
Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the
other Time of Sale Information accompanying, or delivered prior to
delivery of such Issuer Free Writing Prospectus, did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
such Underwriter expressly for use in any Issuer Free Writing
Prospectus.
(d)
Registration
Statement and Prospectus. The Registration Statement
has been declared effective by the Commission. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement
complied and will comply in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture 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;
and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus 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, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions made in reliance upon and
in conformity with information relating to the Underwriter
furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement and the Prospectus and any
amendment or supplement thereto.
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(e)
Incorporated
Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Exchange Act”) and none of such documents contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement,
the Prospectus or the Time of Sale Information, when such documents
are filed with the Commission, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, 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 to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(f)
Financial
Statements. The financial statements and
the related notes thereto included or incorporated by reference in
the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly in all material respects the
financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes
in their cash flows for the periods specified; and, except as
otherwise stated in the Registration Statement, the Time of Sale
Information and the Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby.
(g)
No Material Adverse
Change. Since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties,
management, financial position or results of operations of the
Company and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any material loss
or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any
court or arbitrator or governmental or regulatory authority, except
in each case as otherwise disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus.
(h)
Organization and
Good Standing. The Company has been duly
incorporated and is validly existing and in good standing under the
laws of its
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jurisdiction of
incorporation, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct its business in which it is
engaged, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or
in the aggregate, have a material adverse effect on the business,
properties, management, financial position or results of operations
of the Company or on the performance by the Company of its
obligations under the Securities (a “Material Adverse
Effect”).
(i)
Due
Authorization. The Company has full right,
power and authority to execute and deliver this Agreement, the
Securities and the Indenture (collectively, the “Transaction
Documents”) and to perform its obligations hereunder and
thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(j)
The
Indenture. The Indenture has been duly
authorized by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding agreement
of the Company enforceable against the Company in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles
relating to enforceability (collectively, the “Enforceability
Exceptions”). The Indenture conforms in all material
respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(k)
The
Securities .
The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of
the Indenture. The Securities conform in all material
respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(l)
Underwriting
Agreement .
This Agreement has been duly authorized, executed and
delivered by the Company.
(m)
No Violation or
Default. Neither the Company nor any
of its subsidiaries is (i) in violation of its charter or by-laws
or similar organizational documents; (ii) in default, and no event
has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other 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; or (iii) in violation of any law or
statute or
6
any judgment, order,
rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(n)
No Conflicts.
The
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or
violation 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 property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other 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, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or (iii) result in the violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(o)
No Consents
Required .
No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of each of the Transaction Documents,
the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for
(i) the registration of the Securities under the Securities Act,
(ii) the qualification of the Indenture under the Trust Indenture
Act, (iii) such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters and (iv) the
authorization of the Public Service Commission of Wisconsin
(“PSCW”) to issue the Securities.
(p)
Legal
Proceedings. Except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
the subject that, individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect; no such
investigations, actions, suits or proceedings are overtly
threatened or, to the best knowledge of the Company, contemplated
by any governmental or regulatory authority or overtly threatened
by others; and (i) there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the
Registration Statement or the Prospectus that are
7
not so described in the
Registration Statement, the Time of Sale Information and the
Prospectus and (ii) there are no statutes, regulations or contracts
or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the
Registration Statement and the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(q)
Independent
Accountants. Pricewaterhouse Coopers LLP,
who has certified certain financial statements of the Company and
its subsidiaries, is an independent registered public accounting
firm with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(r)
Title to Real and
Personal Property. The Company has good and
sufficient title to, or has valid rights to lease or otherwise use,
all items of real and personal property that are material to the
business of the Company, free and clear of all liens, encumbrances,
claims and defects and imperfections of title except (i) the lien
of the Company’s Indenture of Mortgage and Deed of Trust
dated as of January 1, 1946, with U.S. Bank National Association
(successor to First Wisconsin Trust Company), as trustee, and the
liens and encumbrances permitted thereunder or (ii) those liens
that do not materially interfere with the use made and proposed to
be made of such property by the Company or (ii) could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(s)
No Undisclosed
Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Time of
Sale Information.
(t)
Investment Company
Act. 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
Registration Statement, the Time of Sale Information and the
Prospectus, will not be an “investment company” or an
entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company
Act”).
(u)
Taxes.
The Company has
paid all federal, state, local and foreign taxes and filed all tax
returns required to be paid or filed through the date hereof; and
except as otherwise disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus, there is no tax
deficiency that has been, or could reasonably be expected to be,
asserted against the Company or any of its subsidiaries or any of
their respective properties or assets.
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(v)
Licenses and
Permits. The Company possesses all
licenses, certificates, permits and other authorizations issued by,
and has made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of its
properties or the conduct of its business as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, the
Company has not received notice of any revocation or modification
of any such license, certificate, permit or authorization or does
not have any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary
course.
(w)
Compliance With
Environmental Laws. (i) The Company and its
subsidiaries (x) are, and at all prior times were, in compliance in
all material respects with any and all applicable federal, state,
local and foreign laws, rules, regulations, requirements, decisions
and orders relating to the protection of human health or safety,
the environment, natural resources, hazardous or toxic substances
or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (y) have received and are in
compliance in all material respects with all permits, licenses,
certificates or other authorizations or approvals required of them
under applicable Environmental Laws to conduct their respective
businesses; and (z) have not received notice of any actual or
potential liability under or relating to any Environmental Laws,
including for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, and have no knowledge of any event or condition that
would reasonably be expected to result in any such notice, and (ii)
there are no costs or liabilities associated with Environmental
Laws of or relating to the Company or its subsidiaries, except in
the case of each of (i) and (ii) above, for any such failure to
comply, or failure to receive required permits, licenses or
approvals, or cost or liability, as would not, individually or in
the aggregate, have a Material Adverse Effect.
(x)
Disclosure
Controls .
The Company maintains a system of “disclosure controls
and procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that is 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 has carried out
evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act.
(y)
Accounting
Controls. The Company maintains systems
of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, its principal executive and principal
financial officers, or persons
9
performing similar
functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(z)
Insurance.
The
Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in
amounts and insures against such losses and risks as are customary
for similarly sized entities engaged in similar lines of business;
and neither the Company nor any of its subsidiaries has (i)
received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii)
any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage at reasonable cost from similar insurers as
may be necessary to continue its business.
(aa)
No Unlawful
Payments. Neither the Company nor any
of its subsidiaries nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(bb)
Status under the
Securities Act . The Company is not an
“ineligible issuer,” as defined under the Securities
Act, as of or during the times specified in such definition in
connection with the offering of the Securities.
4.
Further Agreements
of the Company . The Company covenants and
agrees with the Underwriter that:
(a)
Required
Filings. The Company will file the
final Prospectus with the Commission within the time periods
specified by Rule 424(b) under the Securities Act, will file any
Issuer Free Writing Prospectus (including the Term Sheet in the
form of Annex C hereto) to the extent required by Rule 433 under
the Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing
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Prospectus (to the
extent not previously delivered) to the Underwriter in such
quantities as the Underwriter may reasonably request.
(b)
Delivery of
Copies. The Company will deliver,
without charge, (i) to the Representative, a signed copy of the
Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith; and (ii) to the Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith and (B) 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 Underwriter 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 Securities
as in the opinion of counsel for the Underwriter a prospectus
relating to the Securities 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 Securities by any Underwriter or
dealer.
(c)
Amendments or
Supplements; Issuer Free Writing Prospectuses.
Before making,
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, the
Company will furnish to the Underwriter and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus,
amendment or supplement for review and will not make, 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 Underwriter reasonably objects.
(d)
Notice to the
Representative. The Company will advise the
Underwriter promptly, and confirm such advice in writing, (i) when
any amendment to the Registration Statement has been filed or
becomes effective; (ii) when any supplement to the Prospectus or
any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed; (iii) 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; (iv) 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 or the Prospectus
or the initiation or threatening of any proceeding for that purpose
or pursuant to Section 8A of the Securities Act; (v) of the
occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Time of Sale Information 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 required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered
to a purchaser, not misleading; and (vi) of the receipt by the
Company of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any
jurisdiction or
11
the initiation or
threatening of any proceeding for such purpose; and the Company
will use its reasonab
