Exhibit 1.1
Execution Copy
Pacific Gas and Electric Company
$200,000,000 Aggregate Principal Amount
5.625% Senior Notes due November 30, 2017
and
$400,000,000 Aggregate Principal Amount
of 6.35% Senior Notes Due February 15, 2038
Underwriting Agreement
New
York, New York
February 26, 2008
| To |
|
the Representatives named in
Schedules I-A and I-B hereto of the several
Underwriters named in Schedule
II hereto |
Ladies
and Gentlemen:
Pacific
Gas and Electric Company, a corporation organized under the laws of
California (the “Company”), proposes to sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$200,000,000 aggregate principal amount of 5.625% Senior Notes due
November 30, 2017 (the “2017 Senior Notes”) having
the terms set forth in Schedule I-A hereto, and $400,000,000
aggregate principal amount of 6.35% senior notes due
February 15, 2038 (the “2038 Senior Notes” and
together with the 2017 Senior Notes, the “Securities”)
having the terms set forth in Schedule I-B hereto, to be
issued under an indenture, amended and restated as of
April 22, 2005 (the “Base Indenture”) and, with
respect to the 2017 Senior Notes, supplemented by a supplemental
indenture, dated as of December 4, 2007 (the “Second
Supplemental Indenture”) and, with respect to the 2038 Senior
Notes, supplemented by a supplemental indenture, to be dated as of
March 3, 2008 (the “Third Supplemental Indenture”
and together with the Second Supplemental Indenture and the Base
Indenture, the “Indenture”), between the Company and
The Bank of New York Trust Company, N.A., as trustee (the
“Trustee”). To the extent there are no additional
Underwriters listed on Schedules I-A and I-B other than you, the
term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary 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 which
were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary 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 Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or
the
Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in
Section 20 hereof.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (the file number of which is
set forth in Schedules I-A and I-B hereto) on Form S-3, including a
related Base Prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the
Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x). The Company
agrees to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(b) On each 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
defined herein), 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 and the respective rules thereunder; on each Effective Date and
at the Execution Time, 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; on the
Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, 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 and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final
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Prospectus (or
any 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
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
(c) As of the Execution Time and the
Closing Date, (i) the Disclosure Package and (ii) each
electronic road show, if any, when taken together as a whole with
the Disclosure Package, did not and will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(d) (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
Sections 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)) made any offer relating to the Securities in
reliance on the exemption in Rule 163, and (iv) at the
Execution Time (with such date being used as the determination date
for purposes of this clause (iv)), the Company was or is (as the
case may be) a “well-known seasoned issuer” as defined
in Rule 405.
(e) (i) 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 Securities and (ii) as
of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in
Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus and the final term sheets prepared and filed pursuant to
Section 5(b) hereto did not, as of its issue date, and does not
include any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement
deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
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(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of California, with full
corporate 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 Disclosure Package and the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in
good standing would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(h) This Agreement has been duly
authorized, executed and delivered by the Company.
(i) The Indenture has been duly
authorized by the Company; and the Base Indenture has been, and at
the Closing Date the Supplemental Indenture will have been, duly
executed and delivered by the Company; and the Base Indenture
constitutes and, at the Closing Date, assuming due authorization,
execution and delivery by the Trustee, the Supplemental Indenture
will constitute, a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by laws and principles
of equity affecting the enforcement of creditors’ rights,
including, without limitation, bankruptcy, reorganization,
insolvency arrangement, fraudulent conveyance, moratorium,
receivership, assignment for the benefit of creditors laws; and the
Base Indenture has been duly qualified under the Trust Indenture
Act.
(j) The issuance and sale by the
Company of the Securities pursuant to this Agreement have been duly
authorized by all necessary corporate action; and, when issued,
authenticated and delivered to the Underwriters pursuant to this
Agreement against payment of the consideration therefor specified
herein, the Securities will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by laws or
principles of equity affecting creditors’ rights, including,
without limitation, bankruptcy, reorganization, insolvency,
arrangement, fraudulent conveyance, moratorium, receivership,
assignment for the benefit of creditors laws, and will be entitled
to the benefits of the Indenture.
(k) 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 Disclosure
Package and the Final Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as
amended (the “1940 Act”) or a company
“controlled” by an “investment company”
within the meaning of the 1940 Act.
(l) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained from the
California Public Utilities Commission (the “CPUC”),
under the Act, under the Trust Indenture Act or
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otherwise and
such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated herein and in the
Disclosure Package and the Final Prospectus.
(m) Neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any licenses, certificates,
permits and other authorizations which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Registration
Statement, Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto).
(n) None of the issue and sale of the
Securities, the consummation of any other of the transactions
herein contemplated or the performance by the Company of any of its
obligations set forth herein will conflict with or result in, a
breach or violation of: (i) the charter, bylaws or comparable
constituent documents of the Company or any of its 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, except, in the case
of clauses (ii) and (iii) above, for such conflicts,
breaches or violations which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(o) The consolidated historical
financial statements and schedules of the Company and its
consolidated subsidiaries included in the Preliminary Prospectus,
the Final Prospectus and the Registration Statement present fairly
in all material respects the financial condition, results of
operations and cash flows of the Company and its consolidated
subsidiaries as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein).
(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 best knowledge of the
Company, threatened that (i) would 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) would reasonably be expected to have a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
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(q) Deloitte & Touche LLP, who
have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included in the Registration Statement, the Disclosure Package and
the Final Prospectus, is an independent registered public
accounting firm with respect to the Company within the meaning of
the Act and the applicable published rules and regulations
thereunder and of the Public Company Accounting Oversight
Board.
(r) Except as set forth or
contemplated in the Registration Statement, Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto), neither
the Company nor any of its subsidiaries is (i) 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”), (ii) owns or
operates any real property contaminated with any substance that is
subject to any Environmental Laws, (iii) is liable for any
off-site disposal or contamination pursuant to any Environmental
Laws, or (iv) is subject to any claim relating to any
Environmental Laws, which violation, contamination, liability or
claim could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and there is no
investigation pending or, to the Company’s knowledge,
threatened against it or its subsidiaries, that could reasonably be
expected to lead to the making of such a claim.
(s) The Company does not have any
significant subsidiaries as defined by Rule 1-02 of
Regulation S-X.
(t) The CPUC has authorized the
issuance and sale by the Company of the Securities, and such
authorization is in full force and effect and sufficient for the
issuance and sale of the Securities to the Underwriters.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters pursuant to
this Agreement shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedules I-A and I-B,
as applicable, hereto the principal amount of the Securities set
forth opposite such Underwriter’s name in Schedule II
hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made on the date and at the time specified in
Schedules I-A and I-B hereto or at such time on such later date not
more than three Business Days after the foregoing date as the
Representatives shall designate, 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 Securities being herein called the
“Closing Date”). Delivery of the
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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 by wire transfer
payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall
otherwise instruct.
4.
Offering by Underwriters . It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Final Prospectus.
5.
Agreements . The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus
unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or
supplement to which you reasonably object. The Company will cause
the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the
Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b),
(ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iii) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use, any order preventing
or suspending the use of any preliminary prospectus, any Issuer
Free Writing Prospectus or the Final Prospectus, or the institution
or threatening of any proceeding for the purpose of suspending the
effectiveness of the Registration Statement or preventing or
suspending the use of any preliminary prospectus, any Issuer Free
Writing Prospectus or the Final Prospectus, 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 institution or threatening of any proceeding
for such purpose. The Company will use its reasonable best efforts
to prevent (i) the issuance of such stop order or other order
referred to in the preceding sentence, or (ii) the occurrence
of (A) any suspension of the effectiveness, or objection to the
use, of the Registration Statement or (B) any prevention or
suspension of the use of the preliminary prospectus, any Issuer
Free Writing Prospectus or the Final Prospectus and, upon such
issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
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(b) The Company shall prepare final
term sheets, containing solely a description of final terms of the
Securities and the offering thereof, in the form approved by you
and attached as Schedules IV-A and IV-B hereto and to file such
term sheets pursuant to Rule 433(d) within the time required by
such Rule.
(c) If, at any time prior to the
filing of the Final Prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include
any 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 or the
circumstances then prevailing not misleading, the Company will
(i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct
such statement or omission; and (iii) supply any amendment or
supplement to you in such quantities as you may reasonably
request.
(d) If, at any time when a prospectus
relating to the Securities is required to be delivered under the
Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), any event occurs as a result
of which the Final Prospectus as then supplemented would include
any 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 at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or
delivery of the Final Prospectus, the Company promptly will
(i) notify the Representatives of any such event,
(ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an
amendment or supplement or new registration statement which will
correct such statement or omission or effect such compliance,
(iii) use its best efforts to have any amendment to the
Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption
in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(e) As soon as practicable, the
Company will make generally available to its security holders and
to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of each Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the
offering.
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(g) The Company will arrange, if
necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required
for the distribution of the Securities; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(a) The Company agrees that, unless
it has or shall have obtained the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained,
as the case may be, the prior written consent of the Company, 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) required to be filed by the Company
with the Commission or retained by the Company under Rule 433,
other than a free writing prospectus containing the information
contained in the final term sheets prepared and filed pursuant to
Section 5(b) hereto, or one or more free writing prospectuses
through customary Bloomberg distribution that do not contain
substantive changes from or additions to the information contained
in the final term sheets prepared and filed pursuant to Section
5(b) hereto; provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule III hereto or a term
sheet, substantially in the form of Schedules IV-A and IV-B hereto
and any electronic road show. Any such free writing prospectus
consented to by the Representatives or the Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and
will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record keeping and that it will not take
any action that would result in any Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d)
a Free Writing Prospectus prepared by or on behalf of such
Underwriter that such Underwriter would not otherwise have been
required to so file.
(h) The Company will not, without the
prior written consent of the Representatives, offer, sell, contract
to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise)
by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly
or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect
of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, until the
Business Day set forth on Schedules I-A and I-B hereto.
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(i) The Company will not take,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the
costs and expenses relating to the following matters: (i) the
preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection
with the original issuance and sale of the Securities;
(iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with
the offering of the Securities; (v) any registration or
qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification);
(vi) any filings required to be made with the Financial
Industry Regulatory Authority, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (vii) the transportation and other
expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the
Securities; (viii) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and
(ix) all other costs and expenses incident to the performance
by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Underwriters . The
obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time
and the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) The Final Prospectus, and any
supplement thereto, shall have been filed in the manner and within
the time period required by Rule 424(b); the final term sheets
contemplated by Section 5(b) hereto, and any other material
required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable
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