EXHIBIT 1.1
$1,500,000,000
Medco Health Solutions, Inc.
$300,000,000 6.125% Notes due 2013
$1,200,000,000 7.125% Notes due 2018
Underwriting Agreement
New
York, New York
March 13, 2008
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Barclays Capital Inc.
As representatives of the several
underwriters named in Schedule I
hereto
Ladies
and Gentlemen:
Medco Health Solutions, Inc., a
corporation organized under the laws of the State of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$300,000,000 aggregate principal amount of its 6.125% Notes due
2013 (the “Notes due 2013”) and $1,200,000,000
aggregate principal amount of its 7.125% Notes due 2018 (the
“Notes due 2018” and, together with the Notes due 2013,
the “Securities”), to be issued under an indenture (the
“Indenture”) dated as of March 18, 2008, between
the Company and U.S. Bank National Association, as trustee (the
“Trustee”). To the extent there are no additional
Underwriters listed on Schedule I 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 on
Form S-3 (File No. 333-149655), 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 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. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission and
no proceeding for that purpose or pursuant to Section 8A of
the Act against the Company or related to the offering has been
initiated or, to the Company’s knowledge, threatened by the
Commission. 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).
(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, as supplemented as of
the Closing Date, will, comply in all material respects with the
applicable requirements of the 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, as supplemented as of the Closing Date, 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 as
of the Closing Date, the Disclosure Package 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, if any, 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 sheet prepared and filed pursuant to
Section 5(b) hereto 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 documents incorporated by
reference in the Disclosure Package and the Final Prospectus, when
they become effective or when they 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 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; and any
further documents so filed and incorporated by reference in the
Registration Statement and the Final Prospectus, 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 then in effect
and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(h) Since the date as of which
information is given in the Disclosure Package and the Final
Prospectus, there has not been (i) any material change in the
capital stock (other than changes pursuant to open market or
accelerated repurchase plans or employee benefit or equity
incentive option plans or changes resulting from the conversion or
redemption of outstanding shares of preferred stock) or long-term
debt of the Company and its subsidiaries considered as a whole, or
(ii) any material adverse change, or any development involving
a prospective material adverse change, in or affecting the
business, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries considered as a
whole (a “Material Adverse Change”), otherwise than as
set forth or contemplated in the Disclosure Package and the Final
Prospectus.
(i) The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority
to own, lease and operate its properties and conduct its business
as described in the Disclosure Package and the Final Prospectus;
the Company is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not have a material adverse effect on the business,
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole (
a “Material Adverse Effect”).
(j) Each of the Company’s
subsidiaries that qualifies as a “significant
subsidiary” under Section 1-02(w) of Regulation S-X
(each a “Significant Subsidiary” and, collectively, the
“Significant Subsidiaries”) has been duly organized and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority to own, lease and operate its properties and conduct its
business as described in the Disclosure Package and the Final
Prospectus; each Significant Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing
under the laws of each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result
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in a Material
Adverse Effect; except as otherwise disclosed in the Disclosure
Package and the Final Prospectus, all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
(except for shares necessary to qualify directors or to maintain
any minimum number of shareholders required by law) is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(k) The Company has an outstanding
capital stock as set forth in the Disclosure Package and the Final
Prospectus (except for subsequent issuances pursuant to employee
benefit or equity incentive option plans or pursuant to the
exercise of convertible securities or options and except for
repurchases in connection with open market or accelerated
repurchase plans or redemptions of shares of preferred stock), 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.
(l) This Agreement has been duly
authorized, executed and delivered by the Company.
(m) The Securities have been duly
authorized, and, when issued and delivered pursuant to this
Agreement, the Securities will have been duly executed, issued and
delivered and (assuming the due authentication thereof by the
Trustee) will constitute valid and legally binding obligations of
the Company, will be entitled to the benefits provided by the
Indenture and will be enforceable in accordance with their terms
subject to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of
creditors’ rights and to general equity principles.
(n) The Indenture has been duly
authorized by the Company and at the Closing Date, when executed
and delivered by the Company and the Trustee, will constitute a
valid and legally binding agreement of the Company, enforceable in
accordance with its terms subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to
or affecting the enforcement of creditors’ rights and to
general equity principles; the Indenture has been duly qualified
under the Trust Indenture Act.
(o) The Indenture conforms, and the
Securities will conform, in all material respects, to the
descriptions thereof contained in the Disclosure Package and the
Final Prospectus.
(p) The statements set forth in the
Disclosure Package and Final Prospectus under the caption
“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 “U.S.
Federal Tax Considerations,” insofar as they purport to
describe the provisions of the laws and documents referred to
therein, fairly present in all material respects the matters
referred to therein.
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(q) The issuance and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein
contemplated, will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any of the property or assets of the
Company or any of its Significant Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject; (ii) result in any violation of the
provisions of the Certificate of Incorporation, as amended, or the
By-Laws, as amended, of the Company; or (iii) result in a
violation of any statute or any order, rule or regulation of any
court or governmental agency or body in the United States having
jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties, except, in the case of
(i) and (iii) for any such conflicts, breaches,
violations, lien, charge, encumbrance, which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or affect the validity of the Securities or
the legal authority of the Company to comply with the Securities,
the Indenture or this Agreement.
(r) No consent, approval,
authorization, order, registration or qualification of or with any
court or any such regulatory authority or other governmental body
in the United States having jurisdiction over the Company is
required for the issuance and sale of the Securities or the
consummation by the Company of the other transactions contemplated
by this Agreement or the Indenture, except such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required by the securities or Blue Sky laws of the
various states, the Act, the Trust Indenture Act and the securities
laws of any jurisdiction outside the United States in which the
Securities are offered.
(s) Except as set forth in the
Disclosure Package and the Final Prospectus, there are no actions,
suits or proceedings 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, individually or in the
aggregate, would reasonably be expected to (i) have a material
adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) a Material Adverse Effect.
(t) PricewaterhouseCoopers LLP, who
have certified the audited consolidated financial statements and
schedules included or incorporated by reference in the Disclosure
Package and the Final Prospectus, are independent registered public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations
thereunder.
(u) 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 as of the dates
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and for the
periods indicated, comply as to form in all material respects with
the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The summary financial data set forth under the caption
“Ratios of Earnings to Fixed Charges” in the
Preliminary Prospectus and the Final Prospectus fairly present, on
the basis stated in the Preliminary Prospectus and the Final
Prospectus, the information included therein.
(v) 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 required to register
as an “investment company” as defined in the Investment
Company Act of 1940, as amended.
(w) No labor problem or dispute with
the employees of the Company or any of its subsidiaries exists or
is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers, that could have a Material Adverse Effect, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(x) The Company and each of its
subsidiaries has conducted its business in compliance with all the
laws, rules and regulations of the jurisdictions in which each such
entity is conducting business, except as disclosed in the
Disclosure Package and the Final Prospectus or except for any such
non-compliance that would not, individually or in the aggregate,
have a Material Adverse Effect; without limiting the foregoing,
except as disclosed in the Disclosure Package and the Final
Prospectus, the Company and each of its subsidiaries, and each of
the pharmacists and physicians employed by the Company and each of
its subsidiaries, owns or possesses and is in compliance with the
terms, provisions and conditions of all permits, licenses,
franchises, operating certificates, orders, authorizations,
registrations, qualifications, consents or approvals (including
certificates of need, licenses, pharmacy licenses, Medicare
provider numbers, accreditations and other similar documentation or
approvals of any local health departments or any Authority (as
hereinafter defined)) (collectively, “Permits”) of any
court, arbitrator or arbitral body, or any federal, state or local
or foreign governmental agency or self-regulatory authority,
department or commission, or any other board, bureau, review board,
instrumentality or similar organization or any applicable private
accrediting organization (collectively, “Authorities”)
necessary to own and use the properties and assets of the Company
and each of its subsidiaries, respectively, and to conduct their
respective businesses, except where the failure to so own, possess
or comply, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect; as to the Company
and each of its subsidiaries, each such Permit of and from such
Authorities is valid and in full force and effect and there is no
proceeding pending or, to the best knowledge of the Company and its
subsidiaries, threatened that may cause any such Permit of or from
any Authority to be revoked, withdrawn, canceled, suspended or not
renewed, except where the failure to own or possess such Permit
would not reasonably be expected to have a Material Adverse
Effect.
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(y) Except as disclosed in the
disclosure Package and the Final Prospectus, the Company has not
received written notice of any, and to the knowledge of any officer
or director of the Company there are no material Medicare,
Medicaid, or any other managed care recoupment or recoupments of
any third-party payor being sought, threatened, requested or
claimed against the Company or any of its subsidiaries.
(z) The Company or one of its
subsidiaries currently own or possess adequate licenses or other
rights to use the patents and patent applications, copyrights,
trademarks, service marks, trade names, technology and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary rights) necessary in any material respect to conduct
the business of the Company and its subsidiaries, taken as a whole
as currently conducted in the manner described in the Disclosure
Package and the Final Prospectus (collectively, the “Company
Intellectual Property”); and except as disclosed in the
Disclosure Package and the Final Prospectus, neither the Company
nor any of its subsidiaries has received any written notice of
infringement of the intellectual property rights of others with
respect to the Company Intellectual Property, which would
reasonably be expected to have a Material Adverse Effect.
(aa) There is and has been no failure
on the part of the Company or, to the best knowledge of the
Company, any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(bb) The Company maintains a system
of internal accounting 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
weakness in its internal control over financial reporting. Except
as disclosed in the Disclosure Package and the Final Prospectus,
since December 31, 2007, 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.
(cc) 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 material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective.
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(dd) 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.
(ee) 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 in all material respects 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.
(ff) 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.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Securities 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 98.825% of the principal amount thereof with respect to
the Notes due 2013 and 98.306% of the principal amount thereof with
respect to the Notes due 2018, in each case the principal amount of
the Securities set forth opposite such Underwriter’s name in
Schedule I hereto.
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3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made at 9:00 a.m., New York City time, on
March 18, 2008 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 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, and the several Underwriters agree with the Company,
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 so 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 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).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 any Rule 462(b) 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 of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification
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