<PAGE>
EXHIBIT 1.1
$250,000,000
W. R. BERKLEY CORPORATION
6.25% SENIOR NOTES
DUE 2037
UNDERWRITING AGREEMENT
FEBRUARY 9, 2007
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February 9, 2007
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
As
Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
388
Greenwich Street
New
York, New York 10013
Dear Sirs and Mesdames:
W. R. Berkley Corporation, a Delaware corporation (the
"COMPANY"),
proposes to issue and sell to the several Underwriters named in
Schedule I
hereto (the "UNDERWRITERS") $250,000,000 principal amount of its
6.25% Senior
Notes due 2037 (the "SECURITIES") to be issued pursuant to the
provisions of an
Indenture, dated as of February 14, 2003, as supplemented by the
Fifth
Supplemental Indenture, to be dated as of February 14, 2007 (the
"INDENTURE"),
between the Company and The Bank of New York, as Trustee (the
"TRUSTEE").
The Company has filed with the Securities and Exchange
Commission
(the "COMMISSION") a registration statement, including a
prospectus, on Form S-3
(No. 333-128546) covering the registration of the securities of the
Company,
including the Securities, under the Securities Act of 1933, as
amended (the
"SECURITIES ACT"), and the offering thereof from time to time in
accordance with
Rule 415 of the rules and regulations of the Commission under the
Securities Act
(the "RULES AND REGULATIONS") and the Company has filed such
post-effective
amendments thereto as may be required prior to the execution of
this Agreement.
Promptly after execution and delivery of this Agreement, the
Company will
prepare and file a final prospectus and final prospectus supplement
in
accordance with the provisions of paragraph (b) of Rule 424 of the
Rules and
Regulations. "REGISTRATION STATEMENT" at any particular time means
such
registration statement in the form then filed with the Commission,
including any
amendment thereto, any document incorporated by reference therein
and any
information in a prospectus or prospectus supplement deemed or
retroactively
deemed to be a part thereof pursuant to Rule 430B or 430C of the
Rules and
Regulations, that in any case has not been superseded or modified.
"REGISTRATION
STATEMENT" without reference to a time means the Registration
Statement as of
the time of the first contract of sale for the Securities, which
time shall be
considered the "EFFECTIVE DATE" of such Registration Statement
relating to the
Securities. For purposes of this definition, information contained
in a form of
prospectus or prospectus supplement that is deemed or retroactively
deemed to be
a part of the Registration Statement pursuant to Rule 430B of the
Rules and
Regulations shall be considered to be included in the Registration
Statement as
of the time specified in Rule 430B of the Rules and Regulations.
"STATUTORY
PROSPECTUS" as of any particular time means the prospectus relating
to the
Securities that is included in the Registration Statement
immediately prior to
that time, including all information contained in a form of
prospectus or
prospectus supplement deemed to be a part
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thereof pursuant to Rule 430B or 430C of the Rules and Regulations
that in any
case has not been superseded or modified. For purposes of this
definition,
information contained in a form of prospectus (including a
prospectus
supplement) that is deemed or retroactively deemed to be a part of
the
Registration Statement pursuant to Rule 430B of the Rules and
Regulations shall
be considered to be included in the Statutory Prospectus only as of
the actual
time that form of prospectus (including a prospectus supplement) is
filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations
and not
retroactively. "PROSPECTUS" means the Statutory Prospectus that
discloses the
public offering price and other final terms of the Securities and
otherwise
satisfies Section 10(a) of the Securities Act and the term
"PRELIMINARY
PROSPECTUS" means the Statutory Prospectus, as supplemented by the
Preliminary
Prospectus Supplement, dated February 9, 2007.
For purposes of this Agreement, "ISSUER FREE WRITING
PROSPECTUS"
means any "issuer free writing prospectus," as defined in Rule
433(h) of the
Rules and Regulations, relating to the Securities in the form filed
or required
to be filed with the Commission or, if not required to be filed, in
the form
retained or required to be retained in the Company's records
pursuant to Rule
433(g) of the Rules and Regulations, "GENERAL USE ISSUER FREE
WRITING
PROSPECTUS" means any Issuer Free Writing Prospectus that is
intended for
general distribution to prospective investors, as evidenced by its
being
specified in Schedule II hereto and "LIMITED USE ISSUER FREE
WRITING PROSPECTUS"
means any Issuer Free Writing Prospectus that is not a General Use
Issuer Free
Writing Prospectus. All references to the terms "Registration
Statement,"
"Prospectus" and "preliminary prospectus" shall be deemed to
include all
documents incorporated therein by reference pursuant to the
Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"). For purposes of this
Agreement,
all references to the Registration Statement, Prospectus or any
preliminary
prospectus or to any amendment or supplement to any of them shall
be deemed to
include any copy filed with the Commission pursuant to its
Electronic Data
Gathering, Analysis and Retrieval System.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a)
The Registration Statement has become effective; no stop order
suspending
the effectiveness of the Registration Statement is in effect,
and no
proceedings for such purpose are pending before or, to the
knowledge
of the Company, threatened by the Commission.
(b) (i) (A) At the time the Registration Statement initially
became
effective,
(B) at the time of each amendment thereto for the purposes of
complying
with Section 10(a)(3) of the Securities Act (whether by
post-effective amendment, incorporated report or form of
prospectus), (C)
at the
effective time of the Registration Statement relating to the
Securities
and (D) on the Closing Date, the Registration Statement
conformed
and will confirm in all material respects to the requirements
of
the
Securities Act and the Rules and Regulations and did not include
any
untrue
statement of a material fact or omit to state any material fact
required
to be stated therein or necessary to make the statements
therein
not
misleading, (ii) (A) on its date, (B) at the time of filing the
Prospectus
pursuant to Rule 424(b) of the Rules and Regulations and (C) on
the
Closing Date, the Prospectus will conform in all material respects
to
the
requirements of the Securities Act
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and the
Rules and Regulations, (iii) as of 1:30 p.m. New York City time
on
the date
of this Agreement (the "APPLICABLE TIME"), neither the General
Use Issuer
Free Writing Prospectus issued at or prior to the Applicable
Time and
the Statutory Prospectus identified in Schedule II attached
hereto and
all other documents set forth on Schedule II, all considered
together
(collectively, the "GENERAL DISCLOSURE PACKAGE"), nor any
individual
Limited Use Issuer Free Writing Prospectus, when considered
together
with the General Disclosure Package, included any untrue
statement
of a material fact or omitted to state any material fact
necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that the
foregoing
does not apply to (A) statements in or omissions from any
prospectus
included in the Registration Statement or any Issuer Free
Writing
Prospectus in reliance upon or in conformity with written
information furnished to the Company by any Underwriter through
the
representative or representatives of the Underwriter (the
"REPRESENTATIVES") specifically for use therein, (iv) (A) on its
date, (B)
at the
time of its filing pursuant to Rule 424(b) of the Rules and
Regulations and (C) on the Closing Date, the Prospectus does not
include
and will
not include any untrue statement of a material fact or omit to
state any
material fact required to be stated therein, in light of the
circumstances under which they were made, or necessary to make
the
statements
therein not misleading, except that the foregoing does not
apply to
(A) statements in or omissions from any of such documents based
upon
written information furnished to the Company by any Underwriter
through
the Representatives specifically for use therein or (B) that
part
of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended
(the
"TRUST INDENTURE ACT"), of the Trustee; and (v) the documents
incorporated by
reference in the Prospectus, at the time they were, or
hereafter,
are filed with the Commission, complied and, at any time when a
prospectus
relating to the Securities is required (or would be required,
but for
the provisions of Rule 172 of the Rules and Regulations) to be
delivered
under the Securities Act in connection with sales by any
Underwriter or dealer, will comply as to form in all material
respects
with the
requirements of the Exchange Act and the rules and regulations
thereunder.
(c) At the earliest time after the filing of the Registration
Statement
that the Company or another offering participant made a bona
fide offer
(within the meaning of Rule 164(h)(2) of the Rules and
Regulations) of the Securities and at the date of this Agreement,
the
Company
was not and is not an "ineligible issuer" as defined in Rule
405
of the
Rules and Regulations.
(d) Each Issuer Free Writing Prospectus, as of its issue date and
at
all
subsequent times through the completion of the public offer and
sale
of the
Securities or until any earlier date that the 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
or will
conflict with the information then contained in the
Registration
Statement.
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 then contained in the Registration Statement or as
result of
which such Issuer Free Writing Prospectus, if republished
immediately following such event or development, would include an
untrue
statement
of a material fact or would omit to state a material fact
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necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, (A) the
Company
has
promptly notified or will promptly notify the Representatives and
(B)
the
Company has promptly amended or will promptly amend or supplement
such
Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue
statement or omission.
(e) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with
power and
authority (corporate and other) to own its properties and
conduct
its business as described in the General Disclosure Package and
the
Prospectus; and the Company is duly qualified to do business as
a
foreign
corporation in good standing in all other jurisdictions in
which
its
ownership or lease of property or the conduct of its business
requires
such
qualification, except in such jurisdictions where the failure to
be
so
qualified would not individually or in the aggregate have a
material
adverse
effect on the condition (financial or other), business,
properties
or results
of operations of the Company and its subsidiaries taken as a
whole
("MATERIAL ADVERSE EFFECT").
(f) Each Significant Subsidiary (as defined below) of the
Company
has been
duly incorporated and is an existing corporation in good
standing
under the
laws of the jurisdiction of its incorporation, with power and
authority
(corporate and other) to own its properties and conduct its
business
as described in the General Disclosure Package and the
Prospectus; and each Significant Subsidiary of the Company is, to
the
extent
applicable, duly qualified to do business as a foreign
corporation
in good
standing in all other jurisdictions in which its ownership or
lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not
individually or in the aggregate have a Material Adverse Effect;
all of
the issued
and outstanding capital stock of each Significant Subsidiary of
the
Company has been duly authorized and validly issued and is fully
paid
and
nonassessable; and the capital stock of each Significant
Subsidiary
owned by
the Company, directly or through subsidiaries, is owned free
from
liens,
encumbrances and defects. As used herein, "SIGNIFICANT
SUBSIDIARIES" means Admiral Insurance Company, Berkley Regional
Insurance
Company,
Berkley Insurance Company and Nautilus Insurance Company, which
are
currently the only operating insurance companies that are
"significant
subsidiaries" of the Company as that term is defined in Rule
1-02(w) of
Regulation
S-X of the Rules and Regulations.
(g) The Indenture has been duly qualified under the Trust
Indenture
Act and
has been duly authorized, and on the Closing Date (as defined
below)
will be duly executed and delivered by the Company and a valid
and
binding
agreement of the Company, enforceable in accordance with its
terms
except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency
or similar laws affecting creditors' rights generally and (ii)
rights of
acceleration and the availability of equitable remedies may be
limited by
equitable principles of general applicability.
(h) The Securities have been duly authorized and, when executed
and
authenticated in accordance with the provisions of the Indenture
and
delivered
to and paid for by the Underwriters in accordance with the
terms
of this
Agreement on the
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Closing
Date, such Securities will be duly executed, authenticated,
issued
and
delivered and entitled to the benefits of the Indenture and will
be
valid and
binding obligations of the Company, enforceable in accordance
with their
terms except as (i) the enforceability thereof may be limited
by
bankruptcy, insolvency or similar laws affecting creditors'
rights
generally
and (ii) rights of acceleration and the availability of
equitable
remedies may be limited by equitable principles of general
applicability; and the Securities and the Indenture will conform to
the
information in the General Disclosure Package and will conform to
the
descriptions thereof in the Prospectus.
(i) Except as disclosed in the General Disclosure Package and
the
Prospectus, there are no contracts, agreements or understandings
between
the
Company and any person that would give rise to a valid claim
against
the
Company or any Underwriter for a brokerage commission, finder's fee
or
other like
payment in connection with this offering.
(j) There are no contracts, agreements or understandings between
the
Company
and any person granting such person the right to require the
Company to
file a registration statement under the Securities Act with
respect to
any securities of the Company owned or to be owned by such
person or
to require the Company to include such securities in the
securities
registered pursuant to the Registration Statement or in any
securities
being registered pursuant to any other registration statement
filed by
the Company under the Securities Act.
(k) No consent, approval, authorization, or order of, or filing
with, any
governmental agency or body or any court is required for the
performance by the Company of its obligations under this Agreement,
the
Indenture
or the Securities, except such as have been obtained and made
under the
Securities Act, as contemplated under Section 5(a) hereof, and
such as
may be required under state securities laws.
(l) The execution and delivery of, and the performance by the
Company of
its obligations under, this Agreement, the Indenture and the
Securities
will not result in a breach or violation of any of the terms
and
provisions of, or constitute a default under, any statute, any
rule,
regulation
or order of any governmental agency or body or any court,
domestic
or foreign, having jurisdiction over the Company or any
Significant Subsidiaries of the Company or any of their
material
properties, or any material agreement or instrument to which the
Company
or any
such subsidiary is a party or by which the Company or any such
subsidiary
is bound or to which any of the properties of the Company or
any such
subsidiary is subject, or the charter or by-laws of the Company
or any
such subsidiary, and the Company has full power and authority
to
authorize,
issue and sell the Securities as contemplated by this
Agreement.
(m) This Agreement has been duly authorized, executed and
delivered
by the
Company.
(n) Except as disclosed in the General Disclosure Package and
the
Prospectus, the Company and its Significant Subsidiaries have good
and
marketable
title to all real properties and all other properties and
assets
owned by them, in each case free from liens, encumbrances and
defects that
would affect the value thereof or interfere with the use
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<PAGE>
made or to
be made thereof by them, other than liens, encumbrances and
defects
that would not individually or in the aggregate have a Material
Adverse
Effect; and except as disclosed in the General Disclosure
Package
and the
Prospectus, the Company and its subsidiaries hold any leased
real
or
personal property under valid and enforceable leases with no
exceptions
that would
individually or in the aggregate have a Material Adverse
Effect.
(o) The Company and its Significant Subsidiaries possess
adequate
certificates, authorities or permits issued by appropriate
governmental
agencies or
bodies necessary to conduct the business now operated by them
and have
not received any notice of proceedings relating to the
revocation
or
modification of any such certificate, authority or permit that,
if
determined
adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a
Material
Adverse
Effect.
(p) The Company has made all required filings under applicable
insurance
holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions, in each
jurisdiction
in which
such filings or approvals are required, except where the
failure
to have
made such filings or receive such approvals in any such
jurisdiction would not have individually or in the aggregate a
Material
Adverse
Effect; each of the Company's Significant Subsidiaries that is
required
to be organized and licensed as an insurance or reinsurance
company
(the "INSURANCE SUBSIDIARIES") in its jurisdiction of
incorporation is duly organized and licensed as an insurance or
reinsurance company in its respective jurisdiction of
incorporation, and
each such
Significant Subsidiary is duly licensed or authorized as an
insurer or
reinsurer (the "INSURANCE LICENSES") in each other jurisdiction
in which
such licensing or authorization is required, except where the
failure to
be so licensed or authorized in any such jurisdiction would not
have
individually or in the aggregate a Material Adverse Effect; there
is
no pending
or, to the knowledge of the Company, threatened action, suit,
proceeding
or investigation that would reasonably be expected to lead to
the
revocation, termination or suspension of any such Insurance
Licenses,
the
revocation, termination or suspension of which would have
individually
or in the
aggregate a Material Adverse Effect; and except as disclosed in
the
General Disclosure Package and the Prospectus, no insurance
regulatory
agency or
body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends of any Company subsidiary to
its
respective
parent which would have individually or in the aggregate a
Material
Adverse Effect.
(q) The Company and each of its Significant Subsidiaries is in
compliance
with the requirements of all laws, ordinances, governmental
rules or
regulations or court decrees to which it may be subject, and
has
filed all
notices, reports, documents or other information required to be
filed
thereunder, except where the failure to so comply or file would
not
individually or in the aggregate have a Material Adverse
Effect.
(r) Except as disclosed in the General Disclosure Package and
the
Prospectus, neither the Company nor any of its Insurance
Subsidiaries is
in
violation of, or in default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition
contained
in
reinsurance treaties, contracts, agreements and arrangements to
which
the
Company or any of its Insurance Subsidiaries is a party, except
for
such
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violations
or defaults which would not individually or in the aggregate
have a
Material Adverse Effect; neither the Company nor any of its
Insurance
Subsidiaries has received any notice from any of the other
parties to such
treaties, contracts, agreements or arrangements that such
other
party intends not to perform its obligations thereunder and none
of
them has
any reason to believe that any of the other parties to such
treaties,
contracts, agreements or arrangements will be unable to perform
its
obligations thereunder, except to the extent that such
nonperformance
would not
individually or in the aggregate have a Material Adverse
Effect.
(s) To the knowledge of the Company and its Insurance
Subsidiaries,
no change
in any insurance law or regulation is pending that would
reasonably
be expected to have individually or in the aggregate a Material
Adverse
Effect, except as described in the General Disclosure Package
and
the
Prospectus.
(t) No labor dispute with the employees of the Company or any
Significant Subsidiary exists or, to the knowledge of the Company,
is
imminent
that would reasonably be expected to have individually or in
the
aggregate
a Material Adverse Effect.
(u) The Company and its subsidiaries own, possess or can acquire
on
reasonable
terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and
other
intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS")
materially
necessary to conduct the business now operated by them and have
not
received any notice of infringement of or conflict with
asserted
rights of
others with respect to any intellectual property rights that,
if
determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect.
(v) Except as disclosed in the General Disclosure Package and
the
Prospectus, neither the Company nor any of its subsidiaries is
in
violation
of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to
the use,
disposal or release of hazardous or toxic substances or
relating
to the
protection or restoration of the environment or human exposure
to
hazardous
or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns
or
operates any real property contaminated with any substance that
is
subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any
claim
relating to any environmental laws, which violation,
contamination,
liability
or claim would individually or in the aggregate have a Material
Adverse
Effect; and the Company is not aware of any pending
investigation
which
would reasonably be expected to lead to such a claim.
(w) Except as disclosed in the General Disclosure Package and
the
Prospectus, there are no pending actions, suits or proceedings
against or
affecting
the Company, any of its subsidiaries or any of their respective
properties
that would individually or in the aggregate have a Material
Adverse
Effect, or would materially and adversely affect the ability of
the
Company to perform its obligations under this Agreement; and no
such
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actions,
suits or proceedings are, to the Company's knowledge,
threatened
or
contemplated.
(x) KPMG LLP, who have certified the financial statements and
supporting
schedules of the Company and its subsidiaries contained in the
General
Disclosure Package and the Prospectus, are independent public
accountants within the meaning of the Securities Act and the Rules
and
Regulations; except as disclosed in the General Disclosure Package
and the
Prospectus, the financial statements included or incorporated by
reference
in the
Registration Statement and the General Disclosure Package and
the
Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results
of
operations
and cash flows for the periods shown; except as disclosed in
the
General Disclosure Package and the Prospectus, such financial
statements
have been prepared in conformity with the generally accepted
accounting
principles in the United States applied on a consistent basis;
except as
disclosed in the General Disclosure Package and the Prospectus,
the
schedules included or incorporated in the Registration
Statement
present
fairly the information required to be stated therein; and
except
as
disclosed in the General Disclosure Package and the Prospectus,
the
Company
and its Insurance Subsidiaries have made no material change in
their
insurance reserving practices since the most recent audited
financial
statements included in the General Disclosure Package and the
Prospectus.
(y) The statutory annual and quarterly statements of the
Insurance
Subsidiaries required to file such statutory statements and the
statutory
balance
sheets and income statements included in such statutory annual
and
quarterly
statements, most recently filed in each jurisdiction, have been
prepared
in conformity with required or permitted or prescribed
statutory
accounting
principles or practices applied on a consistent basis, except
as may
otherwise be indicated in the notes thereto, and present fairly
the
financial
position of the Insurance Subsidiaries (on a statutory basis)
for the
period covered thereby.
(z) The Company and its subsidiaries maintain a system of
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 United
States
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.
(aa) Except as disclosed in the General Disclosure Package and
the
Prospectus
and except for regular dividends declared or paid consistent
with past
practice, since the date of the latest audited financial
statements
included in the General Disclosure Package and the Prospectus,
(i) there
has been no material adverse change, nor any development or
event
involving a prospective material adverse change, in the
condition
(financial
or other), business, properties or results of operations of the
Company
and its subsidiaries
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taken as a
whole, (ii) there have not been any transactions entered into
by the
Company or any of its subsidiaries other than in the ordinary
course of
business which are material to the Company and its subsidiaries
taken as a
whole, and, (iii) there has been no dividend or distribution of
any kind
declared, paid or made by the Company on any class of its
capital
stock.
(bb) 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 General Disclosure Package and the Prospectus, will not
be an
"investment company" as defined in the Investment Company Act
of
1940.
2. Agreements to Sell and Purchase. The Company hereby agrees
to
sell to the several Underwriters, and each Underwriter, upon the
basis of the
representations and warranties herein contained, but subject to the
conditions
hereinafter stated, agrees, severally and not jointly, to purchase
from the
Company the respective principal amount of Securities set forth in
Schedule I
hereto opposite its name at 98.909% of their principal amount (the
"PURCHASE
PRICE") plus accrued interest, if any, from February 14, 2007 to
the date of
payment and delivery.
3. Terms of Public Offering. The Company is advised by you that
the
Underwriters propose to make a public offering of their respective
portions of
the Securities as soon after the Registration Statement and this
Agreement have
become effective as in your judgment is advisable. The Company is
further
advised by you that the Securities are to be offered to the public
initially at
99.784% of their principal amount (the "PUBLIC OFFERING PRICE")
plus accrued
interest, if any, from February 14, 2007 to the date of payment and
delivery and
to certain dealers selected by you at a price that represents a
concession not
in excess of 0.5% of their principal amount under the Public
Offering Price, and
that any Underwriter may allow, and such dealers may reallow, a
concession to
certain other dealers not to exceed 0.25% of the principal amount
of the
Securities.
4. Payment and Delivery. Payment for the Securities shall be made
to
the Company in Federal or other funds immediately available in New
York City
against delivery of such Securities at 9:00 a.m., New York City
time, on
February 14, 2007, or at such other time on the same or such other
date, not
later than February 22, 2007, as shall be designated in writing by
you. The time
and date of such payment are hereinafter referred to as the
"CLOSING DATE."
Certificates for the Securities shall be in global form and
registered in such names and in such denominations as you shall
request in
writing not later than one full business day prior to the Closing
Date. The
certificates evidencing the Securities shall be delivered to you on
the Closing
Date for the respective accounts of the several Underwriters, with
any transfer
taxes payable in connection with the transfer of the Securities to
the
Underwriters duly paid, against payment of the Purchase Price
therefor plus
accrued interest, if any, to the date of payment and delivery.
-9-
<PAGE>
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company
covenants with each
Underwriter as follows:
(a) The Company has filed or will file each Statutory
Prospectus
(including
the Prospectus) with the Commission pursuant to and in
accordance
with Rule 424(b) not later than the second business day
following
the earlier of the date it is first used or the execution and
delivery
of this Agreement. The Company has complied and will comply
with
Rule 433
of the Rules and Regulations.
(b) The Company will advise the Representatives promptly of any
proposal
to amend or supplement the Registration Statement, the
Prospectus
or the
General Disclosure Package and will afford the Representatives
a
reasonable
opportunity to comment on any such proposed amendment or
supplement; provided, however, the Company shall not file any
such
proposed
amendment or supplement to which the Representatives reasonably
object; and the
Company will also advise the Representatives promptly of
the filing
of any such amendment or supplement and of the institution by
the
Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its
best
efforts to
prevent the issuance of any such stop order and to obtain as
soon as
possible its lifting, if issued.
(c) The Company represents and agrees that, unless it obtains
the
prior
consent of the Representatives, and each Underwriter represents
and
agrees
that, unless it obtains the prior consent of the Company and
the
Representatives, it has not made and will not make any offer
relating to
the
Securities that would constitute an Issuer Free Writing Prospectus,
or
that would
otherwise constitute a "free writing prospectus," as defined in
Rule 405
of the Rules and Regulations, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Company
and the
Representatives is hereinafter referred to as a "PERMITTED FREE
WRITING
PROSPECTUS." The Company represents that it has treated and
agrees
that it
will treat each Permitted Free Writing Prospectus as an "issuer
free
writing prospectus," as defined in Rule 433 of the Rules and
Regulations, and has complied and will comply with the requirements
of
Rules 164
and 433 of the Rules and Regulations applicable to any
Permitted
Free
Writing Prospectus, including timely Commission filing where
required,
legending and record keeping.
(d) The Company will prepare a final term sheet relating to the
Securities, containing only information that describes the final
terms of
the
Securities and otherwise in a form consented to by the
Representatives, and will file such final term sheet within the
period
required
by Rule 433(d)(5)(ii) of the Rules and Regulations following
the
date such
final terms have been established for all classes of the
offering
of the Securities. Any such final term sheet is an Issuer Free
Writing
Prospectus and a Permitted Free Writing Prospectus for purposes
of
this
Agreement. The Company also consents to the use by any Underwriter
of
a free
writing prospectus that contains only (i)(x) information
describing
the
preliminary terms of the Securities or their offering or (y)
information that describes the final terms of the Securities or
their
offering
and that is included in the final term sheet of the Company
contemplated in the first sentence of this subsection or (ii)
other
information that is not "issuer information," as defined in Rule
433 of
the Rules
and
-10-
<PAGE>
Regulations, it being understood that any such free writing
prospectus
referred
to in clause (i) or (ii) above shall not be an Issuer Free
Writing
Prospectus for purposes of this Agreement.
(e) If, at any time when a prospectus relating to the Securities
as
in the
opinion of counsel for the Underwriters is (or but for the
exemption
in Rule 172 would be) required to be delivered under the
Securities
Act in connection with sales by any Underwriter or dealer, any
event
occurs as a result of which the General Disclosure Package or
the
Prospectus
as then amended or supplemented would include an untrue
statement
of a material fact or omit to state any material fact necessary
to make
the statements therein, in the light of the circumstances under
which they
were made, not misleading, or if for any other reason it shall
be
necessary during the same period to amend or supplement the
General
Disclosure
Package or the Prospectus or to file under the Exchange Act any
document
incorporated by reference in the Prospectus in order to comply
with the
provisions of the Securities Act, the Exchange Act or the Trust
Indenture
Act, the Company promptly will notify the Representatives of
such
event, and if such event shall occur or if, in the opinion of
counsel
for the
Underwriters, it is necessary at any time to amend the General
Disclosure
Package or the Prospectus to comply with the Securities Act,
the
Company will promptly prepare and file with the Commission, at its
own
expense,
an amendment or supplement which will correct such statement or
omission
or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such
amendment
or supplement shall constitute a waiver of any of the
conditions
set forth
in Section 6 hereof.
(f) As soon as practicable, but not later than 16 months, after
the
date of
this Agreement, the Company will make generally available to
its
securityholders an earnings statement covering a period of at least
12
months
beginning after the date of this Agreement and satisfying the
provisions
of Section 11(a) of the Securities Act and Rule 158 of the
Rules and
Regulations.
(g) The Company will furnish to the Representatives copies of
the
Registration Statement, including all exhibits, any related
preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus,
any Issuer
Free Writing Prospectus and all amendments and supplements to
such
documents, in each case prior to 3:00 P.M. New York City time on
the
business
day next succeeding the date of this Agreement or as soon as
possible,
with respect to any amendment or supplement, during the period
mentioned
in Section 5(c) above and in such quantities as the
Representatives reasonably request. The Company will pay the
expenses of
printing
and distributing to the Underwriters all such documents.
(h) The Company will arrange for the qualification of the
Securities
for sale
under the laws of such jurisdictions as the Representatives
reasonably
designate and will continue such qualifications in effect so
long as
required for the distribution; provided, that in connection
therewith
the Company shall not be required to qualify to do business in
any
jurisdiction or to file or consent or otherwise subject itself
to
service of
process or taxation in any jurisdiction where it is not already
so
subject.
-11-
<PAGE>
(i) During the period of five years hereafter, the Company will
furnish to
the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal
year, a
copy of
its annual report to stockholders for such year; and the
Company
will
furnish to the Representatives (i) as soon as available, a copy
of
each
report and any definitive proxy statement of the Company filed
with
the
Commission under the Exchange Act or mailed to stockholders, and
(ii)
from time
to time, such other information concerning the Company as the
Representatives may reasonably request.
(j) Whether or not the transactions contemplated in this
Agreement
are
consummated or this Agreement is terminated, the Company will pay
or
cause to
be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements
and
expenses of the Company's counsel and the Company's accountants
in
connection
with the registration and delivery of the Securities under the
Securities
Act and all other fees or expenses in connection with the
preparation and filing of the Indenture, the Registration
Statement, any
preliminary prospectus, the Prospectus, any Issuer Free Writing
Prospectus
and
amendments and supplements to any of the foregoing, including
all
printing
costs associated therewith, and the mailing and delivering of
copies
thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer
and
delivery of the Securities to the Underwriters, including any
transfer
or other
taxes payable thereon, (iii) the cost of printing certificates
representing the Securities, (iv) any fees charged by securities
rating
services
for rating the Securities, (v) the fees and expenses of the
Trustee
and any agent of the Trustee and the fees and disbursements of
counsel
for the Trustee in connection with the Indenture and the
Securities, (vi) travel and lodging expenses of officers and
employees of
the
Company for any "road show" undertaken in connection with the
mark
