Exhibit 1.2
$500,000,000
Series 2007A 5.30% Senior Notes
due January 15, 2012
THE
SOUTHERN COMPANY
UNDERWRITING AGREEMENT
January 11, 2007
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
as
Representatives of the Several Underwriters named on Schedule I
hereto
Ladies and Gentlemen:
The Southern Company, a Delaware corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the
other
Underwriters named in Schedule I hereto (collectively, the
"Underwriters," which
term shall also include any underwriter substituted as hereinafter
provided in
Section 11 hereof) for whom you are acting as representatives (in
such capacity
you shall hereinafter be referred to as the "Representatives"),
with respect to
the sale by the Company and the purchase by the Underwriters,
acting severally
and not jointly, of $500,000,000 aggregate principal amount of the
Series 2007A
5.30% Senior Notes due January 15, 2012 (the "Senior Notes") as set
forth in
Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The
Senior Notes
will be issued pursuant to an indenture, dated as of January 1,
2007 (the "Base
Indenture"), to be entered into between the Company and Wells Fargo
Bank,
National Association, as trustee (the "Trustee"), as to be
supplemented and
amended by a first supplemental indenture, dated as of January 18,
2007, to the
Base Indenture relating to the Senior Notes (the "Supplemental
Indenture" and,
together with the Base Indenture, the "Indenture"), between the
Company and the
Trustee.
SECTION 1.
REPRESENTATIONS AND
WARRANTIES.
The Company
represents
and warrants to the
Underwriters as
follows:
(a) A registration statement on Form S-3, as amended
(File Nos.
333-138503,
333-138503-01 and
333-138503-02),
in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance
with the
provisions of the Securities Act of 1933, as amended (the "1933
Act"), with
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the
Securities
and Exchange Commission (the "Commission"); such
registration statement
and any post-effective
amendment thereto,
each in
the
form heretofore
delivered or to be delivered to the Underwriters,
became effective upon
filing with the Commission in such form (except that
copies of the
registration
statement and any post-effective amendment
delivered to the
Underwriters need not
include exhibits but shall include
all
documents incorporated by reference therein); and no stop order
suspending the
effectiveness of such registration statement, as amended,
has
been issued and no
proceeding for that
purpose or pursuant to Section
8A
of the 1933 Act against the Company or related to the offering has been
initiated or, to the
best knowledge
of the Company, threatened by the
Commission (any
preliminary
prospectus, as
supplemented by a preliminary
prospectus supplement, included in such registration statement, as
amended,
or
filed with the
Commission
pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter
called
a
"Preliminary
Prospectus"); such
registration
statement, as amended, as
used
with respect to the Senior Notes, including the information
deemed a
part
thereof pursuant to
Rule 430B(f)(1) under the 1933 Act on the date of
such
registration
statement's
effectiveness for purposes of Section 11 of
the
1933 Act, as such Section applies to the Company and the
Underwriters
for
the Senior Notes
pursuant to Rule
430B(f)(2) under the
1933 Act (the
"Effective Date"),
including the exhibits thereto and all documents
incorporated by
reference therein
pursuant to Item 12 of
Form S-3 at the
Effective Date, being hereinafter called the "Registration
Statement"; the
base
prospectus relating to
the Senior Notes and certain other securities
of
the Company, in the
form in which it has most recently been filed with
the
Commission on or prior
to the date of this
Agreement relating to
the
Senior Notes, being
hereinafter called the "Basic Prospectus"; the Basic
Prospectus as
amended and supplemented by a preliminary prospectus
supplement dated
January 11, 2007
relating to the Senior
Notes which has
been
filed with the Commission pursuant to Rule 424(b) under the
1933 Act,
as
it may be further
amended and
supplemented
immediately
prior to the
Applicable Time (as
defined below) is hereinafter called the "Pricing
Prospectus"; the Basic Prospectus as amended or supplemented in
final form,
including by a
prospectus supplement
relating to the Senior
Notes in the
form
in which it is filed
with the Commission,
pursuant to Rule 424(b)
under the 1933 Act in
accordance with
Section 4(e) hereof is
hereinafter
called the "Final
Supplemented
Prospectus"; any
reference herein to
any
Preliminary Prospectus, the Basic Prospectus, the Pricing
Prospectus or the
Final Supplemented
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 1933 Act, as of the date of such Preliminary Prospectus, Basic
Prospectus, Pricing
Prospectus or Final
Supplemented
Prospectus, as the
case
may be; any reference to any amendment or supplement to any
Preliminary Prospectus, the Basic Prospectus, the Pricing
Prospectus or the
Final Supplemented
Prospectus shall be
deemed to refer to and include any
documents filed
after the date of such Preliminary Prospectus, Basic
Prospectus, Pricing
Prospectus or Final
Supplemented
Prospectus, as the
case
may be, under the
Securities Exchange
Act of 1934,
as amended (the
"1934 Act"), and incorporated by reference in such Preliminary
Prospectus,
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Basic Prospectus,
Pricing Prospectus or Final Supplemented Prospectus, as
the
case may be; any reference to any amendment to the Registration
Statement shall be
deemed to refer to and include any annual report of the
Company filed pursuant
to Section 13(a) or 15(d) of the 1934 Act after the
effective date
of the Registration Statement that is incorporated by
reference in the Registration Statement.
For purposes of this Agreement, the "Applicable Time" is 2:55
p.m.
EST (New York Time) on the date of this Agreement; the
documents
listed in Schedule III, taken together and attached hereto, are
collectively referred to as the "Pricing Disclosure Package."
(b) The documents
incorporated by
reference in the
Registration Statement
or
the
Pricing Prospectus, when they were filed with the Commission,
complied
in
all material respects with the applicable provisions of the 1934
Act and
the
rules and regulations of the Commission thereunder and, as of such
time
of
filing, when read together with the Pricing Prospectus and any
Permitted
Free
Writing Prospectus (as
defined in Section 3(a) hereof), none of such
documents contained an
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 Final Supplemented Prospectus or any
further amendment or supplement thereto, when such documents are
filed with
the
Commission,
will comply in all
material respects with
the applicable
provisions of the 1934 Act and the rules and regulations of the Commission
thereunder and, when read together with the Final Supplemented Prospectus
as
it otherwise may be amended or supplemented, 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, in the
light
of
the circumstances
under which they were
made, not misleading,
except
that
the Company makes no warranty or representation to the Underwriters
with
respect to: (A) any
statements or omissions made in reliance upon and
in
conformity with
information furnished
in writing to the Company by any
Underwriter through
the Representatives
expressly for use in
the Pricing
Prospectus, any
Permitted Free Writing Prospectus and the Final
Supplemented
Prospectus; or (B) any
information set forth
in the Pricing
Prospectus or
the Final Supplemented Prospectus under the caption
"Description of the
Series 2007A Senior Notes - Book-Entry Only Issuance -
The
Depository Trust Company."
(c) The Registration
Statement and the
Final Supplemented
Prospectus comply,
and
any further amendments or supplements thereto, when any such
amendments
become effective or supplements are filed with the Commission,
as the case
may
be, will comply, in all material respects with the applicable
provisions of the 1933
Act, the 1934 Act, the 1939 Act (hereinafter
defined) and the General Rules and Regulations of the Commission
thereunder
and
the Registration
Statement,
the Pricing
Disclosure
Package and the
Final Supplemented
Prospectus do not and will not, (i) as of the Effective
Date
as to the Registration Statement and any amendment thereto, (ii) as
of
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the
Applicable Time as to
the Pricing Disclosure
Package and (iii) as
of
the
date of the Final Supplemented Prospectus as to the Final
Supplemented
Prospectus or as of
the date when any
supplement is filed as to the Final
Supplemented
Prospectus as
further supplemented, contain an untrue
statement of a material fact or omit to state a material fact
necessary in
order to make the
statements therein
not misleading in the case of the
Registration Statement
and any amendment thereto, and, in the light of the
circumstances under which they were made, not misleading in the
case of the
Pricing Disclosure Package and the Final Supplemented Prospectus as
further
supplemented;
except that
the Company makes no warranties or
representations with respect to (A) that part of the Registration
Statement
which shall constitute
the Statement of
Eligibility (Form T-1)
under the
Trust Indenture
Act of 1939, as amended (the "1939 Act"), (B) any
statements or omissions made in a Permitted Free Writing
Prospectus,
the
Registration
Statement, the Pricing
Prospectus or the
Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in
writing to the
Company by any
Underwriter
through the Representatives
expressly for use therein or (C) any information set forth in the Pricing
Prospectus or
the Final Supplemented Prospectus under the caption
"Description of the
Series 2007A Senior Notes - Book-Entry Only Issuance -
The
Depository Trust Company."
(d) Each Permitted
Free Writing
Prospectus listed on
Schedule III hereto does
not
include anything that
conflicts with the information contained in the
Registration
Statement, the Pricing
Prospectus or the
Final Supplemented
Prospectus and each such Permitted Free Writing Prospectus, as
supplemented
by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did
not contain an 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, except
that the Company makes no warranty or representation to
the
Underwriters
with respect to any
statement or omissions made in a
Permitted Free Writing
Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
through
the
Representatives expressly for use therein.
(e) With respect to
the Registration Statement, (i) the Registration
Statement is an "automatic shelf registration statement" (as
defined in
Rule
405 under the 1933 Act) and (ii) the conditions for use of Form
S-3,
as set forth in the General Instructions thereof, have been
satisfied.
(f) (A) At the time of
filing of the Registration Statement, (B) at the
time
of the most recent amendment to the Registration Statement for
the
purposes of complying with Section 10(a)(3) of the 1933 Act
(whether
such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the 1934 Act or form
of
prospectus) and (C) at the time the Company or any person acting on
its
behalf (within the meaning, for this clause only, of Rule 163(c)
under
the
1933 Act) made any offer relating to the Senior Notes in
reliance
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on
the exemption of Rule 163 under the 1933 Act, the Company was a
"well-known seasoned issuer" (as defined in Rule 405 under the
1933
Act).
(g) At the
determination date for purposes of the Senior Notes within the
meaning of Rule 164(h) under the 1933 Act, the Company was not
an
"ineligible issuer" as defined in Rule 405 under the 1933 Act.
(h) Since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, except as
otherwise
stated therein, there has been no material adverse change in
the
business, properties or financial condition of the Company, whether
or
not
arising in the ordinary course of business.
(i) The Company has
been duly incorporated and is validly existing and in
good
standing as a corporation under the laws of the State of
Delaware
and
has due corporate authority to conduct the business in which it
is
engaged and to own and operate the properties used by it in
such
business, to enter into and perform its obligations under this
Agreement and the Indenture and to issue and sell the Senior Notes
to
the
Underwriters.
(j) This Agreement has
been duly authorized, executed and delivered by the
Company.
(k) The Indenture
has been duly
authorized by the
Company and, on the Closing
Date
(as hereinafter
defined), will have
been duly executed and delivered
by
the Company, and, assuming due authorization, execution and delivery of
the
Indenture by the
Trustee, the
Indenture will, on the Closing Date,
constitute a valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that
enforcement
thereof may
be limited by (1) bankruptcy, insolvency,
reorganization, receivership,
liquidation,
fraudulent
conveyance,
moratorium or other similar laws affecting creditors' rights generally or
(2)
general principles of
equity (regardless
of whether
enforcement
is
considered in a
proceeding
at law or in equity) (the "Enforceability
Exceptions"); the
Indenture will conform
in all material
respects to all
statements relating thereto contained in the Pricing Disclosure
Package and
the
Final Supplemented Prospectus; and, on the Closing Date, the
Indenture
will have been duly
qualified under the 1939 Act.
(l) The issuance and
delivery of the Senior Notes have been duly authorized by
the
Company and, on the Closing Date, the Senior Notes will have been
duly
executed by the Company and, when authenticated in the manner
provided for
in
the Indenture and
delivered against
payment therefor as described in
this
Agreement, will
constitute valid and
legally binding
obligations of
the
Company, enforceable against the Company in accordance with their
terms, except to the
extent that enforcement thereof may be limited by the
Enforceability
Exceptions, will
be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material
5
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respects to all
statements
relating thereto in the Pricing Disclosure
Package and the Final Supplemented Prospectus.
(m) The Company is not
and, after giving effect to the offering and sale of
the
Senior Notes, 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.
(n) The execution,
delivery and
performance by the
Company of this Agreement,
the
Indenture and the Senior Notes and the consummation by the Company of
the
transactions
contemplated
herein and therein and
compliance
by the
Company with its obligations hereunder and thereunder shall
have been duly
authorized by all necessary corporate action on the part of the
Company and
do
not and will not result in any violation of the charter or bylaws
of the
Company, and do not
and will not conflict
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
property or
assets of the
Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to
which the Company is a party or by which it may be bound or to
which any of
its
properties may be subject (except for conflicts,
breaches or
defaults
which would not, individually or in the aggregate, be materially
adverse to
the
Company or materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule, regulation,
judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign,
or any regulatory body
or administrative
agency or
other governmental body having jurisdiction over the Company, or
any of its
properties.
(o) No authorization,
approval, consent or order of any court or
governmental authority or agency is necessary in connection with
the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except
(A)
such
as may be required under the 1933 Act or the rules and
regulations
thereunder; (B) the qualification of the Indenture under the 1939
Act;
and
(C) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or "blue
sky"
laws.
(p) The financial statements incorporated by reference in the Registration
Statement, the Pricing
Prospectus and the Final Supplemented Prospectus,
together with the
related schedules
and notes,
present fairly, in all
material respects, the
financial position,
results of operations and cash
flows of the Company
as of and for the
dates indicated;
said financial
statements have been
prepared in conformity
with accounting principles
generally accepted in
the United States
("GAAP") applied on a
consistent
basis (except that the
unaudited financial statements incorporated by
reference in the Basic
Prospectus, the
Pricing Prospectus
and the Final
Supplemented
Prospectus may be
subject to normal
year-end adjustments)
throughout the periods
involved and
necessarily include
amounts that are
based on the best
estimates and
judgments of management. The selected
6
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financial data
and the summary financial information included in the
Pricing Prospectus and the Final Supplemented Prospectus present
fairly the
information shown therein and have been compiled on a basis
consistent with
that
of the audited and
unaudited financial
statements
incorporated
by
reference in the Registration Statement.
SECTION 2.
SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
----------------------------------------------
(a) On the basis of
the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the
Company
agrees to sell to each Underwriter, severally and not jointly, and
each
Underwriter, severally and not jointly, agrees to purchase from
the
Company, the principal amount of the Senior Notes set forth in
Schedule
I to
this Agreement opposite the name of such Underwriter (plus any
additional amount of Senior Notes that such Underwriter may
become
obligated to purchase pursuant to the provisions of Section 11
hereof)
at a
price equal to 99.288% of the principal amount thereof.
(b) Payment for and
delivery of certificates for the Senior Notes shall be made
at
the offices of
Troutman Sanders LLP, 600 Peachtree Street, N.E.,
Atlanta, Georgia at
10:00 A.M., New York time, on January 18, 2007 (unless
postponed in
accordance with the
provisions of Section
11) or such other
time, place or date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein
called the
"Closing Date").
Payment shall be made
to the Company by wire transfer in
federal funds at the
Closing Date against
delivery of the Senior Notes to
Barclays Capital
Inc. on behalf of all of the Underwriters. It is
understood that each Underwriter has authorized Barclays Capital Inc., for
each
Underwriter's
account, to accept delivery of, receipt
for, and make
payment of, the principal amount of the Senior Notes which each
Underwriter
has
agreed to purchase.
Barclays Capital Inc.,
individually and not
as a
representative of the
Underwriters,
may (but shall not be
obligated to)
make
payment of the principal amount of the Senior Notes to be purchased
by
any
Underwriter
whose payment has not been received by
the Closing Date,
but
such payment shall not relieve such Underwriter from its obligations
hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the
offices of The
Depository Trust Company in New York, New York or its designee, and
the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon,
New York time,
on the last business day prior to the Closing Date.
SECTION 3.
FREE WRITING PROSPECTUSES.
-------------------------
(a) The Company
represents
and agrees that,
without the prior
consent of the
Representatives, it
has not made and will not make any offer relating to
the
Senior Notes that
would constitute
a "free writing prospectus" as
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defined in Rule 405 under the 1933 Act, other than a Permitted Free
Writing
Prospectus; each
Underwriter,
severally and not
jointly, represents
and
agrees that,
without
the prior consent of the Company and the
Representatives, it
has not made and will not make any offer relating to
the
Senior Notes that
would constitute
a "free writing prospectus" as
defined in Rule 405 under the Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to be
filed by
the
Company pursuant to Rule 433; any such free writing prospectus (which
shall include the pricing term sheet discussed in Section 3(b)
hereof), the
use
of which has been consented to by the Company and the Representatives,
is
listed on Schedule
III and herein
called a "Permitted Free Writing
Prospectus."
(b) The Company agrees
to prepare a pricing term sheet, substantially in
the
form of Schedule II hereto and approved by the Representatives,
and
to
file such pricing term sheet pursuant to Rule 433(d) under the
1933
Act
within the time period prescribed by such Rule.
(c) The Company and
the Representatives have complied and will comply with
the
requirements of Rule 433 under the 1933 Act applicable to any
free
writing prospectus, including timely Commission filing where
required
and
legending.
(d) The Company
agrees that if at any
time following
issuance of a
Permitted
Free
Writing Prospectus
any event occurred or
occurs as a result of which
such
Permitted Free Writing
Prospectus would conflict with the information
in
the Registration Statement, the Pricing Prospectus or the Final
Supplemented
Prospectus or include an untrue statement of a material fact
or
omit to state any material fact necessary in order to make the
statements therein,
in light of the
circumstances
then prevailing,
not
misleading, the
Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives,
will prepare and
furnish without
charge to each
Underwriter a free
writing prospectus
or
other document,
the use of which has been consented to by the
Representatives, which
will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not
apply to
any
statements or omissions in a Permitted Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to
the Company by an
Underwriter through
the Representatives,
expressly for
use
therein.
(e) The Company agrees
that if there occurs an event or development as a
result of which the Pricing Disclosure Package would include an
untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of
the
circumstances then prevailing, not misleading, the Company will
notify
the
Representatives so that any use of the Pricing Disclosure
Package
may
cease until it is amended or supplemented.
SECTION 4.
COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
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(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed
copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all
exhibits
filed therewith,
and including unsigned copies of each consent and
certificate included
therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested).
As soon
as
the Company
is advised
thereof, it will advise the Representatives
orally of the issuance of any stop order under the 1933 Act with
respect to
the
Registration
Statement, or the institution of any proceedings for that
purpose or pursuant
to Section 8A of the
1933 Act against the
Company or
related to the offering, of which the Company shall have
received notice,
and
will use its best
efforts to prevent
the issuance of any such stop
order and to secure the prompt removal thereof, if issued. The
Company will
deliver to
the Representatives sufficient conformed copies of the
Registration
Statement, the Basic
Prospectus, the
Pricing Prospectus and
the
Final Supplemented
Prospectus and of all
supplements
and amendments
thereto (in
each case without exhibits) for distribution to the
Underwriters and,
from time to time, as many copies of the Basic
Prospectus, the
Pricing Prospectus and the Final Supplemented Prospectus as
the
Underwriters may
reasonably request for
the purposes
contemplated by
the
1933 Act or the 1934 Act.
(b) The Company will
furnish the Underwriters with written or electronic copies
of
each amendment
and supplement to the Final Supplemented Prospectus
relating to the
offering of the Senior
Notes in such
quantities
as the
Underwriters may from
time to time
reasonably request.
If, during the
period (not exceeding nine months) when the delivery of a
prospectus (or in
lieu
thereof, the notice referred to in Rule 173(a)
under the 1933
Act)
shall be required by law in connection with the sale of any Senior
Notes by
an
Underwriter, any event relating to or affecting the Company, or of
which
the
Company shall be advised in writing by the Representatives, shall
occur, which in the
opinion of the
Company or of
Underwriters'
counsel
should be set
forth in a supplement to or an amendment of the Final
Supplemented
Prospectus, as the
case may be, in order
to make the Final
Supplemented
Prospectus not
misleading in the light of the circumstances
when
it (or in lieu
thereof, the notice
referred to in Rule
173(a) under
the
1933 Act) is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final
Supplemented
Prospectus or to file
under the 1934 Act any document incorporated by
reference in the Final Supplemented Prospectus in order to comply with
the
1933
Act or the 1934 Act,
the Company forthwith will (i) notify the
Underwriters to
suspend solicitation
of purchases of the Senior Notes and
(ii)
at its expense,
make any such
filing or prepare
and furnish to the
Underwriters a
reasonable number of
copies of a supplement or supplements
or
an amendment or amendments to the Final Supplemented Prospectus which
will
supplement
or amend the Final
Supplemented
Prospectus
so that, as
supplemented or
amended, it will 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
when the Final
Supplemented Prospectus (or in lieu thereof, the notice referred to
in Rule
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173(a) under the 1933
Act) is delivered,
not misleading or which will
effect any other necessary compliance. In case any Underwriter is
required
to
deliver a prospectus
in connection with the sale of any Senior
Notes
after the expiration of the period specified in the preceding
sentence, the
Company, upon
the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable
quantity of a
supplemented or
amended prospectus,
or supplements or amendments to
the
Final Supplemented
Prospectus,
complying with Section 10(a) of the 1933
Act.
During the period specified in the second sentence of this
subsection,
the
Company will
continue to prepare
and file with the
Commission
on a
timely basis all
documents or
amendments required
under the 1934 Act
and
the
rules and regulations thereunder; provided, that the Company shall
not
file
such documents or amendments without also furnishing copies thereof
prior to such filing to the Representatives and Dewey Ballantine
LLP.
(c) The Company will
endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the
applicable
securities laws of such states and the other jurisdictions of
the
United States as the Representatives may designate; provided,
however,
that
the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or
to
file
a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will
make generally available to its security holders as
soon
as practicable but not later than 45 days after the close of
the
period covered thereby, an earnings statement of the Company (in
form
complying with the provisions of Rule 158 of the rules and
regulations
under the 1933 Act) covering a twelve-month period beginning not
later
than
the first day of the Company's fiscal quarter next following
the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) As soon as
practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act,
the
Company will file the Final Supplemented Prospectus, in a form
approved
by
the Representatives, such approval not to be unreasonably
withheld,
with
the Commission and will advise the Representatives of such
filing
and
will confirm such advice in writing. Furthermore, the Company
will
make
any other required filings pursuant to Rule 433(d)(1) of the
1933
Act
within the time required by such Rule.
(f) During a period of
15 days from the date of this Agreement, the Company
will
not, without the Representatives' prior written consent,
directly
or
indirectly, sell, offer to sell, grant any option for the sale
of,
or
otherwise dispose of, any Senior Notes or any security
convertible
into
or exchangeable into or exercisable for the Senior Notes or any
debt
securities substantially similar to the Senior Notes (except
for
the
Senior Notes issued pursuant to this Agreement). The
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<PAGE>
Representatives agree that commercial paper or other debt
securities
with
scheduled maturities of less than one year are not subject to
this
Section 4(f).
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to
the performance of its obligations under this Agreement, including
but not
limited to, the expenses of (i) the printing and filing of the
Registration
Statement as originally filed and of each amendment thereto, (ii)
the
preparation, issuance and delivery of the certificate(s) for the
Senior Notes,
(iii) the fees and disbursements of the Company's counsel and
accountants, (iv)
the qualification of the Senior Notes under securities laws in
accordance with
the provisions of Section 4(c) hereof, including filing fees and
the reasonable
fees and disbursements of Dewey Ballantine LLP, counsel for the
Underwriters, in
connection therewith and in connection with the preparation of any
blue sky
survey (such fees and disbursements of counsel shall not exceed
$3,500), (v) the
printing and delivery to the Underwriters of copies of the
Registration
Statement as originally filed and of each amendment thereto and of
the Pricing
Prospectus, any Permitted Free Writing Prospectus, the Final
Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the
printing and
delivery to the Underwriters of copies of any blue sky survey,
(vii) the fee of
the National Association of Securities Dealers, Inc. in connection
with its
review of the offering contemplated by this Agreement, if
applicable, (viii) the
fees and expenses of the Trustee, including the fees and
disbursements of
counsel for the Trustee in connection with the Indenture and the
Senior Notes,
(ix) any fees payable in connection with the rating of the Senior
Notes, (x) the
cost and charges of any transfer agent or registrar, and (xi) the
cost of
qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 10 hereof, the
Underwriters shall pay all other expenses incurred by them in
connection with
their offering of the Senior Notes including fees and disbursements
of their
counsel, Dewey Ballantine LLP.
SECTION 6.
CONDITIONS OF
UNDERWRITERS'
OBLIGATIONS. The
obligations
of the Underwriters to
purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No stop order
suspending the
effectiveness of the
Registration
Statement
shall be in effect on the Closing Date and no proceedings
for that purpose
or
pursuant to Section 8A of the 1933 Act against the Company or
related to
the
offering shall be
pending before,
or to the knowledge of
the Company
threatened by,
the Commission on such date. If filing of the Pricing
Prospectus or the Final Supplemented Prospectus, or any supplement
thereto,
is
required pursuant to
Rule 424, the
Pricing Prospectus and the Final
Supplemented Prospectus, and any such supplement, as applicable,
shall have
been
filed in the manner and within the time period required by Rule 424.
The
pricing term sheet
contemplated by Section 3(b) hereto, and any other
material required to
be filed by the Company pursuant to Rule 433(d) under
the
1933 Act, shall have
been filed by the
Company with the Commission
within the applicable time periods prescribed for such filings by
Rule 433.
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<PAGE>
(b) On the Closing
Date the Representatives shall have received:
(1) The opinion, dated
the Closing Date, of Troutman Sanders LLP, counsel
for
the Company, substantially in the form attached hereto as
Schedule
IV.
(2) The opinion, dated
the Closing Date, of Emmet, Marvin & Martin, LLP,
counsel to the Trustee, substantially in the form attached hereto
as
Schedule V.
(3) The opinion, dated
the Closing Date, of Dewey Ballantine LLP, counsel
for
the Underwriters, substantially in the form attached hereto as
Schedule VI.
(c) At the Closing
Date, there shall not have been,
since the date hereof
or
since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus,
any material
adverse change in the
business, properties
or financial condition
of the
Company, whether or not arising in the ordinary course of business,
and the
Representatives shall
have received a certificate of the President or any
Vice
President of the
Company, and dated as
of the Closing Date,
to the
effect that (i) there has been no such material adverse change, (ii) the
representations and
warranties
in Section 1 hereof
are true and
correct
with
the same force and
effect as though
expressly made at and
as of the
Closing Date,
(iii) the Company has complied with all agreements and
satisfied all
conditions
on its part to be
performed or
satisf
