|
Exhibit 1.1
The Clorox
Company
$500,000,000 5.000% Senior
Notes due 2013
Underwriting
Agreement
February 27,
2008
Citigroup Global Markets
Inc.,
J.P. Morgan Securities Inc.,
Wachovia Capital Markets, LLC
As representatives of the
several Underwriters
named in Schedule I
hereto,
c/o Citigroup Global Markets
Inc.
388/390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Clorox Company, a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of $500,000,000 principal
amount of its 5.000% Senior Notes due 2013 (the
“Securities”).
1. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form
S-3 (File No. 333-146472) in respect of the Securities has been
filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the
date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called
the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1
and including any prospectus supplement relating to the Securities
that is filed with the Commission and deemed by virtue of Rule 430B
to be part of such registration statement, each as amended at the
time such part of the registration statement became effective,
are
hereinafter collectively
called the “Registration Statement”; the Basic
Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus, or the
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 Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free
writing prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “Issuer
Free Writing Prospectus”;
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”), and the rules and regulations of the Commission
thereunder, and did 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; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Citigroup Global Markets Inc., J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC (collectively,
the “Representatives,” as representatives of the
several Underwriters named in Schedule I hereto) expressly for use
therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is 2:53 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as of
the Applicable Time as supplemented by the final term sheet
prepared and filed pursuant to Section 5(a) hereof, taken
together (collectively, the “Pricing Disclosure
Package”), did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(a) hereto does not conflict with
the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit
2
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;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d) The documents
incorporated by reference in the Pricing Disclosure Package and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
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 not misleading;
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions 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; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of
this Agreement and prior to the execution of this Agreement, except
as set forth on Schedule II(b) hereto;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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 not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions 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;
(f) The Company and its
subsidiaries, considered as one enterprise, have not sustained
since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Disclosure Package and
the Prospectus any material loss or interference with their
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Disclosure Package and the
Prospectus; and, since the respective dates as of which information
is given in the Registration Statement, the Prospectus and the
Pricing Disclosure Package,
3
there has not been any change
in the capital stock of the Company or the consolidated long term
debt of the Company and its subsidiaries or any material adverse
change in the financial condition, business prospects, results of
operations, earnings or business of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, otherwise than as
set forth or contemplated in the Pricing Disclosure Package and the
Prospectus;
(g) The Company and its
subsidiaries, considered as one enterprise, have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Pricing Disclosure Package and the
Prospectus and except where the failure to have such good and
marketable title could not reasonably be expected to have a
material adverse effect on the financial condition, business
prospects, results of operations, earnings or business of the
Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business (a
“Material Adverse Effect”); and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and could not reasonably be
expected to have a Material Adverse Effect;
(h) Each of the Company and
each of its Significant Subsidiaries (as defined below) has been
duly incorporated and is validly existing as a corporation (or
other relevant organizational form) in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
organizational power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Pricing Disclosure Package and the Prospectus, and
is duly qualified to do business as a foreign corporation (or other
relevant organizational form) and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. As used herein,
“Significant Subsidiary” means any subsidiary of the
Company that is a significant subsidiary as defined in Rule 1-02(w)
of the Commission’s Regulation S-X. As of the date hereof,
the Company’s only Significant Subsidiaries are: (i) The
Clorox Sales Company (ii) The Glad Products Company and
(iii) Burt’s Bees, Inc.;
(i) The Company has an
authorized capitalization as set forth in the Pricing Disclosure
Package and the Prospectus and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all the
outstanding shares of capital stock of each Significant Subsidiary
have been duly and validly authorized and issued and are fully paid
and non-assessable, and, except as otherwise set forth in the
Pricing Disclosure Package and the Prospectus, all outstanding
shares of capital stock of the Significant Subsidiaries are owned
by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances;
4
(j) The Securities have been
duly authorized and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles (whether considered in a proceeding in equity or at
law), and entitled to the benefits provided by the indenture dated
as of October 9, 2007 (the “Indenture”) between
the Company and The Bank of New York Trust Company, N.A., as
Trustee (the “Trustee”), under which they are to be
issued, which is substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles (whether
considered in a proceeding in equity or at law); and the Securities
and the Indenture will conform to the descriptions thereof in the
Pricing Disclosure Package and the Prospectus;
(k) This Agreement has been
duly authorized, executed and delivered by the Company;
(l) Neither the issue and
sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or bylaws (or similar organizational document)
of the Company or any of its Significant Subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company
or any of its subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, other than, in the
case of clauses (ii) and (iii), conflicts, breaches or liens
(considered in the aggregate) which could not reasonably be
expected to have a Material Adverse Effect;
(m) No consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or the Indenture
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(n) (A) Neither the Company
nor any Significant Subsidiary is in violation or default of any
provision of its charter or bylaws (or similar organizational
document), and (B) neither the Company nor any subsidiary is
in violation or default of (i) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or
5
other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject, or (ii) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, other
than, in the case of clause (B) above, any violations or
defaults (considered in the aggregate) which could not reasonably
be expected to have a Material Adverse Effect. Schedule III hereto
lists each indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument with respect to which a default
by the Company could reasonably be expected to have a Material
Adverse Effect;
(o) The statements set forth
in the Pricing Prospectus and the Prospectus under the captions
“Description of Debt Securities” and “Description
of Notes”, insofar as they purport to constitute a summary of
the terms of the Securities, and under the caption “Material
United States Tax Consequences”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(p) No action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the
knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect, except as set forth in or
contemplated in the Pricing Prospectus;
(q) The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(r) (A) (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 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), and (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 Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) 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) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(s) Ernst & Young
LLP, who have certified certain financial statements of the Company
and its subsidiaries, and have audited the Company’s internal
control over financial reporting and management’s assessment
thereof, are an independent registered accounting firm as required
by the Act and the rules and regulations of the Commission
thereunder;
6
(t) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial
reporting;
(u) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Disclosure Package and the Prospectus,
there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting;
(v) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that the information required to be
disclosed by the Company in reports filed under the Securities
Exchange Act of 1934 is (i) recorded, processed, summarized
and reported within the time periods specified in the SEC’s
rules and forms, and (ii) accumulated and communicated to
management, including the chief executive officer and chief
financial officer, as appropriate, to allow timely decisions
regarding disclosure; and such disclosure controls and procedures
are effective;
(w) The Company and its
subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive, or
comply with, required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Pricing Prospectus. The Company has disclosed in the Pricing
Disclosure Package and the Prospectus, all such actions where it or
its subsidiaries has been named as a “potentially responsible
party,” except where such actions could not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect;
7
(x) The Company and its
subsidiaries, considered as one enterprise, own, possess, license
or have other rights to use, on reasonable terms, all patents,
patent applications, trade and service marks, trade and service
mark registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) except
where such failure to so own, possess, license or have other rights
to use such Intellectual Property could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect, except as set forth or contemplated in the Pricing
Disclosure Package. With respect to the Intellectual Property,
(a) neither the Company nor any of its subsidiaries has
received written notice of infringement or misappropriation of or
conflict with asserted rights of others with respect to any
Intellectual Property, except as set forth or contemplated in the
Pricing Disclosure Package and the Prospectus and (b) there is
no pending or threatened action, suit, proceeding or claim by
others challenging the Company’s or any subsidiary’s
rights in or to any such Intellectual Property, or any facts which
would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any such subsidiary therein,
and which infringement, misappropriation or conflict or invalidity
or inadequacy, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect, except as set
forth or contemplated in the Pricing Disclosure Package;
(y) Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith;
(z) The operations of the
Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements and the money laundering statutes and the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened;
8
(aa) Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC; and
(bb) Except as disclosed in
the Pricing Disclosure Package and the Prospectus, the Company does
not have any material lending or other relationship with the
Underwriters or any lending affiliate of any
Underwriter.
2. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of 99.204% of the principal amount thereof, plus
accrued interest, if any, from March 3, 2008 to the Time of
Delivery (as defined below) hereunder, the principal amount of the
Securities, set forth opposite the name of such Underwriter in
Schedule I hereto.
3. Upon the authorization by
you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Securities to be
purchased by each Underwriter hereunder 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 The Depository
Trust Company (“DTC”) or its designated custodian. The
Company will deliver the Securities to Citigroup Global Markets
Inc., for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by
the Company to Citigroup Global Markets Inc. at least forty-eight
hours in advance, by causing DTC to credit the Securities to the
account of Citigroup Global Markets Inc. at DTC. The Company will
cause the certificates representing the Securities to be made
available to the Representatives for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) at the
office of DTC or its designated custodian (the “Designated
Office”). The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on March 3, 2008 or
such other time and date as the Representatives and the Company may
agree upon in writing. Such time and date are herein called the
“Time of Delivery”.
(b) The documents to be
delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 8(i) hereof,
will be delivered at the offices of Latham & Watkins LLP,
505 Montgomery Street, Suite 2000, San Francisco, California 94111
(the “Closing Location”), and the Securities will be
delivered at the Designated Office, all at the Time of Delivery. A
meeting will be held at the Closing Location at 3:00 p.m., New York
City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this
Section 4 and Section 5, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive
order to close.
9
5. The Company agrees with
each of the Underwriters:
(a) To prepare the Prospectus
in a form approved by you and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission’s
close of business on the second business day following the date of
this Agreement; to make no further amendment or any supplement to
the Registration Statement, the Basic Prospectus or the Prospectus
(other than required periodic reports so long as such report does
not directly relate to the offering of the Securities) prior to the
Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to
furnish you with copies thereof; to prepare a final term sheet,
containing solely a description of the Securities, in the form set
forth in Schedule IV hereto and to file such term sheet pursuant to
Rule 433(d) under the Act within the time required by such Rule; to
file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act;
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities; to advise
you, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other
prospectus in respect of the Securities, of any notice of objection
of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other
|
