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Exhibit 1(a)
McDONALD’S
CORPORATION
UNDERWRITING
AGREEMENT
To the Representatives named in Schedule
I hereto of
the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory.
McDonald’s Corporation (the “Company”), a
Delaware corporation, proposes to sell to the underwriters named in
Schedule II hereto (the “Underwriters”), for whom you
are acting as representatives (the “Representatives”,
which term may refer to a single Representative if so indicated on
Schedule I hereto), the principal amount of its securities
identified in Schedule I hereto (the “Securities”), to
be issued under an Indenture dated as of October 19, 1996 (as
supplemented from time to time, the “Indenture”),
between the Company and U.S. Bank National Association (formerly,
First Union National Bank), as trustee (the “Trustee”).
(If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms
“Underwriters” and “Representatives,” as
used herein, shall each be deemed to refer to such firm or
firms.)
2. Representations and
Warranties of the Company. As of the date of this Agreement,
the Applicable Time (as hereinafter defined) and the Closing Date
(as hereinafter defined), the Company represents and warrants to
each of the Underwriters that:
(a) The Company has filed
with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement
on Form S-3 (File No. 333-139431) under the Securities Act of
1933, as amended (the “Securities Act”), which provides
for the registration of the Securities under the Securities Act and
the offering of the Securities. Such registration statement meets
the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies in all other material respects with
said Rule. Such Registration Statement became effective upon filing
pursuant to Rule 462(e) under the Securities Act. The Indenture is
duly qualified under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”), and the Company has duly
authorized the issuance of the Securities. The Company proposes to
file with the Commission pursuant to Rule 424(b)(2) or (b)(5) under
the Securities Act a supplement to the form of prospectus included
in registration statement File No. 333-139431 relating to the
Securities and the plan of distribution thereof. The registration
statement File No. 333-139431, including the exhibits thereto,
is hereinafter called the “Registration Statement”; the
prospectus in the form in which it appears in registration
statement File No. 333-139431 is hereinafter called the
“Basic Prospectus”; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Basic Prospectus
as so supplemented) is hereinafter called the “Final
Prospectus”. Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424(a) is
hereinafter called the “Preliminary Final Prospectus”.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 that were filed under the
Securities Exchange Act of
1934, as amended (the “Exchange Act”) or, if
applicable, otherwise deemed to be a part thereof, on or before the
Applicable Time (as hereinafter defined), or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of
this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference or, if
applicable, otherwise deemed to be a part thereof. The initial
effective date of the Registration Statement was not earlier than
the date three years before the Closing Date (as hereinafter
defined).
(b) On each date on which the
Registration Statement or any post-effective amendment or
amendments thereto (including the filing of any document
incorporated by reference in or otherwise deemed to be a part of
the Registration Statement) becomes effective (each such time an
“Effective Date”), the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule
424(b) and on the Closing Date (as hereinafter defined), the Final
Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”) and the respective rules
thereunder; on each date on which the Registration Statement or any
post-effective amendment or amendments thereto (including the
filing of any document incorporated by reference in or otherwise
deemed to be a part of the Registration Statement) becomes
effective and at the Applicable Time (as hereinafter defined), the
Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date (as hereinafter
defined), the Final Prospectus (together with any supplement
thereto) will not include 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, however, that the
Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act
of the Trustee, (ii) information, if any, contained in the
Registration Statement or Final Prospectus relating to The
Depository Trust Company (“DTC”) and its book-entry
system, or (iii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement, any Preliminary Final Prospectus and the Final
Prospectus. On the Effective Date and on the Closing Date (as
hereinafter defined), the Indenture did or will comply in all
material respects with the requirements of the Trust Indenture
Act.
(c) Any offer that is a
written communication relating to the Securities made prior to the
filing of the Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) under the Securities Act) has been filed with the
Commission in accordance with the exemption provided by Rule 163
under the Securities Act (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including, without
limitation, the legending requirement, to qualify such offer for
the exemption from Section 5(c) of the Securities Act provided
by Rule 163.
As of the date and time of
the execution of this Agreement (the “Applicable
Time”), neither (x) any Issuer General Use Free Writing
Prospectus(es) (as defined below), the Preliminary Final Prospectus
made
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available by the Company for
use by the Underwriters and the Final Term Sheet (as defined in
Section 4(a) hereof), if any, relating to the offering of the
Securities, all considered together (collectively, the
“General Disclosure Package”), nor (y) any
individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
As used in this subsection
and elsewhere in this Agreement:
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act
(“Rule 433”), relating to the Securities that
(i) is required to be filed with the Commission by the
Company, (ii) is a “road show” that constitutes a
written communication within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors.
“Issuer Limited Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing
Prospectus.
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 did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Final Prospectus,
including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part thereof that
has not been superseded or modified.
(d) The financial statements
of the Company and its consolidated subsidiaries included in the
Registration Statement, the General Disclosure Package and the
Final Prospectus fairly present the financial condition of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of operations and cash flow for the periods therein
specified; and said financial statements have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except as
otherwise stated therein. As used herein, “consolidated
subsidiaries” means each subsidiary of the Company which is
included in the most recent consolidated financial statements of
the Company contained in the Registration Statement, and each other
subsidiary of the Company which is included in consolidated
financial statements of the Company prepared from time to time
thereafter. All disclosures contained in the Registration
Statement, the Final Prospectus or the General Disclosure Package
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G under the Exchange Act and Item 10(e) of
Regulation S-K of the Securities Act, to the extent
applicable.
(e) Subsequent to the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the
Final Prospectus and prior to the Closing Date (as hereinafter
defined) hereinafter mentioned, except as set forth or contemplated
in the General Disclosure Package and
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the Final Prospectus,
(i) neither the Company nor any of its consolidated
subsidiaries has entered into any transaction not in the ordinary
course of business which is material to the Company and its
consolidated subsidiaries, considered as a whole, (ii) there
has been no material adverse change in the properties, business,
financial condition or results of operations of the Company and its
consolidated subsidiaries, considered as a whole, and (iii) no
legal or governmental proceeding, which has or will have materially
affected the Company or any of its consolidated subsidiaries,
considered as a whole, or the transactions contemplated by this
Agreement, has been or will have been instituted or
threatened.
(f) The consummation of the
transactions herein contemplated and the fulfillment of the terms
hereof will not conflict with or result in a breach of any of the
terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company is a party, or the Restated Certificate of
Incorporation or Amended and Restated By-Laws of the Company as
presently in effect, or any order, rule or regulation applicable to
the Company of any court or any federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over the Company or its properties.
(g) The Securities have been
duly and validly authorized and, when issued, authenticated and
delivered against payment therefor in accordance with the terms of
the Indenture and this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms and entitled to the benefits of the Indenture, except
as enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the enforceability
of creditors’ rights and general principles of equity, and
will conform to the descriptions thereof contained in the General
Disclosure Package and the Final Prospectus. The Indenture has been
duly and validly authorized by the Company and is a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors’ rights and general
principles of equity. The Indenture conforms to the description in
the General Disclosure Package and the Final Prospectus, and is
duly qualified under the Trust Indenture Act.
(h) The Company is not, and
upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the General Disclosure Package and the Final Prospectus will not
be, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(i) (i) At the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Securities Act) made any offer relating to
the Securities in reliance on the exemption of Rule 163 under the
Securities Act, and (iv) at the Applicable Time (with such
date being used as the determination date for purposes of this
clause (iv)), the Company was and is a “well-known seasoned
issuer”, as defined in Rule 405 under the Securities Act
(“Rule 405”), including not having been and not being
an “ineligible issuer” as defined in Rule 405; the
Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Securities, since
their registration on the Registration Statement, have been and
remain eligible for registration by the Company on a Rule 405
“automatic shelf registration statement”; and the
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) under the Securities Act objecting to the use of the
automatic shelf registration statement form.
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At the time of filing the
Registration Statement, at the earliest time thereafter that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of
the Securities and as of the Applicable Time (with such Applicable
Time being used as the determination date for purposes of this
clause), the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
(j) The Company and each of
its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (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.
The Company and its
consolidated subsidiaries employ disclosure controls and procedures
that are designed to ensure that information required to be
disclosed by the Company in the 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, and is accumulated and
communicated to the Company’s management, including its
principal executive officer or officers and principal financial
officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
3. Sale, Purchase and
Delivery of Securities. On the basis of the representations and
warranties herein contained, but subject to the terms and
conditions herein set forth, the Company hereby agrees to sell to
the Underwriters, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the principal
amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
“Underwriters’ Securities” and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter
provided are herein called “Contract
Securities”.
If so provided in Schedule I
hereto, the Underwriters are authorized to solicit offers to
purchase Securities from the Company pursuant to delayed delivery
contracts (“Delayed Delivery Contracts”), substantially
in the form of Schedule III hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor,
the Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date (as hereinafter defined), the
percentage set forth in Schedule I hereto of the principal amount
of the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in
all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the
Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum principal amount set forth in
Schedule I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum
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aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity, enforceability or
performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall bear
the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite
the name of such Underwriter bears to the aggregate principal
amount set forth in Schedule II hereto, except to the extent that
you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
Delivery of and payment for
the Underwriters’ Securities shall be made at the office, on
the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Underwriters’
Securities being herein called the “Closing Date”).
Delivery of the Underwriters’ Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Company in Federal (same day) funds, or, if so
indicated on Schedule I hereto, in New York Clearinghouse (same
day) funds. Certificates for the Underwriters’ Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in
advance of the Closing Date.
The Company agrees to have
the Underwriters’ Securities available for inspection,
checking and packaging by the Representatives in New York, New
York, not later than 1:00 P.M. on the business day prior to the
Closing Date.
If so provided in Schedule I
hereto, Underwriters’ Securities will be represented by one
or more definitive global Securities in book-entry form which will
be deposited by or on behalf of the Company with DTC or DTC’s
designated custodian. In such case, (a) delivery of the
Underwriters’ Securities shall be made to the Representatives
for the respective accounts of the several Underwriters by causing
DTC to credit the Underwriters’ Securities to the account of
the Representatives at DTC, and (b) the Company will cause the
certificates representing the Underwriters’ Securities to be
made available to the Representatives for inspection not later than
1:00 P.M., New York City time, on the business day prior to the
Closing Date at the office of DTC or its designated
custodian.
4. Covenants of the
Company. The Company covenants and agrees with the Underwriters
that:
(a) Prior to the termination
of the offering of the Securities, the Company will not file any
amendment to the Registration Statement or supplement (including
the Final Prospectus) to the Basic Prospectus unless the Company
has furnished you a copy for your review prior to filing, and the
Company will not file any such proposed amendment or supplement to
which you reasonably object; provided, however , that
without the consent of, but after consultation with, the
Underwriters, including the furnishing of copies as contemplated
herein, the Company may file any of its periodic filings that are
required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and
that do not materially affect or are not related to the offering of
the Securities. Subject to the foregoing sentence, the Company will
promptly cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 under the Securities Act. Unless otherwise
notified by the Representatives, the Company will prepare a final
term sheet (the “Final Term Sheet”) reflecting the
final terms of the offering of the Securities, in substantially the
form of Annex I and otherwise satisfactory in form and substance to
the Representatives, and shall file such
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Final Term Sheet as an
“issuer free writing prospectus” pursuant to Rule 433
prior to the close of business within two days following the date
such final terms are established. The Company will promptly advise
the Representatives (i) when the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424 under the
Securities Act, (ii) when any amendment to the Registration
Statement or any new registration statement relating to the
Securities shall have become effective, (iii) of any request
by the Commission for any amendment of the Registration Statement
or any such new registration statement or amendment of or
supplement to the Final Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for
any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement any such new registration statement or any
notice pursuant to Rule 401(g)(2) under the Securities Act
objecting to the use of the automatic shelf registration statement
form or the institution or threatening of any proceeding for such
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use commercially reasonable efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will prepare
and file with the Commission, promptly upon the request of the
Representatives, any amendments or supplements to the Registration
Statement, the General Disclosure Package or the Final Prospectus
which, in the opinion of counsel for the Underwriters, may be
necessary to enable the several Underwriters to continue the sale
of the Securities, and the Company will use commercially reasonable
efforts to cause any such amendments to become effective and any
such supplements to be filed with the Commission and approved for
use by the Underwriters as promptly as possible. If at any time
when a prospectus relating to the Securities is required to be
delivered under the Securities Act (including circumstances where
such requirement may be satisfied pursuant to Rule 172 under the
Securities Act), any event relating to or affecting the Company
occurs as a result of which the Registration Statement, the General
Disclosure Package or the Final 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 statement
therein not misleading, or if it is necessary at any time to amend
or supplement the Registration Statement, the General Disclosure
Package or the Final Prospectus, as then amended or supplemented,
to comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or which
will effect such compliance. For the purposes of this paragraph
(b), the Company will furnish such information with respect to
itself as the Representatives may from time to time reasonably
request.
(c) If, at any time following
issuance of an Issuer Free Writing Prospectus, there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement (or any other
registration statement relating to the Securities) or the Final
Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
In addition, the Company will comply with the Securities Act, and
the rules and regulations under the Securities Act, the Exchange
Act, and the rules and regulations under the Exchange Act, so as to
permit the completion of the distribution of each offering of
Securities.
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(d) As soon as practicable,
but not later than 90 days after the end of the 12-month period
beginning at the end of the current fiscal quarter of the Company,
the Company will make generally available to its security holders
and you an earnings statement covering a period of at least twelve
months beginning not earlier than said effective date which shall
satisfy the provisions of Section 11(a) of the Securities
Act.
(e) The Company will furnish
to the Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including exhibits
thereto and documents incorporated by reference therein) and each
amendment thereto which shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act, as
many copies of the General Disclosure Package, the Final
Prospectus, any Issuer Free Writing Prospectus and any amendments
thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing
all documents relating to the offering.
(f) The Company will furnish
such information and execute such instruments as may be
require
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