Exhibit 1.1
PACKAGING CORPORATION OF
AMERICA
$150,000,000
6.50% SENIOR NOTES DUE 2018
UNDERWRITING
AGREEMENT
March 19,
2008
Deutsche Bank
Securities Inc.
J.P. Morgan Securities Inc.
As Representatives of
the
Several Underwriters
c/o Deutsche Bank
Securities Inc.
60 Wall Street, 4th
Floor
New York, New
York 10005
Ladies and
Gentlemen:
Packaging
Corporation of America, a Delaware corporation (the
“Company”), proposes to issue and sell to the several
underwriters (the “Underwriters”) named in Schedule I
hereto for whom you are acting as representatives (the
“Representatives”) $150,000,000 aggregate principal
amount of its 6.50% Senior Notes due 2018 (the
“Notes”). The respective principal amounts of the
Notes to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. The Notes are to
be issued under the Indenture, dated as of July 21, 2003 (the
“Indenture”), by and between the Company and U.S. Bank
National Association, as trustee (the
“Trustee”).
As the
Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the
principal amount of Notes set forth opposite their respective names
in Schedule I.
In consideration
of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1.
Representations and
Warranties of the Company .
The Company
represents and warrants to each of the Underwriters as
follows:
(a)
An “automatic shelf registration statement” as defined
in Rule 405 under the Securities Act of 1933, as amended (the
“Act”), on Form S-3 (File No. 333-149510) in
respect of the Notes, including a prospectus (the “Base
Prospectus”), has been prepared and filed by the Company not
earlier than three years prior to the date hereof, in conformity
with the requirements of the Act and the rules and regulations
(the “Rules and
Regulations”) of
the Securities and Exchange Commission (the
“Commission”) thereunder. The Company and the
transactions contemplated by this Agreement meet the eligibility
requirements of, and comply with the conditions for the use of,
Form S-3 under the Act. Such registration statement,
which shall be deemed to include all information omitted therefrom
in reliance upon Rules 430A, 430B or 430C under the Act, is
herein referred to as the “Registration Statement” and
became effective under the Act upon filing with the
Commission. No post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. As
used herein, the term “Prospectus” means the Base
Prospectus as supplemented by the prospectus supplement relating to
the Notes first filed with the Commission pursuant to and within
the time limits described in Rule 424(b) under the Act
and in accordance with Section 4(a) hereof. The
Base Prospectus, as supplemented by any preliminary prospectus
supplement relating to the Notes filed with the Commission pursuant
to Rule 424(b) under the Act, is herein referred to as a
“Preliminary Prospectus.” Any reference herein to
the Registration Statement, to any Preliminary Prospectus or to the
Prospectus or to any amendment or supplement to any of the
foregoing documents 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 effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be, and any reference to
“amend,” “amendment” or supplement with
respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to include any documents
incorporated by reference therein, and any supplements or
amendments thereto, filed with the Commission after the date of
filing of the Prospectus under Rule 424(b) under the Act,
and prior to the termination of the offering of the Notes by the
Underwriters.
(b)
As of the Applicable Time (as defined below) and as of the Closing
Date (as defined below), neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time and the Statutory Prospectus (as defined below),
all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited
Use Free Writing Prospectus (as defined below), when considered
together with the Preliminary Prospectus filed prior to the first
use of such Limited Use Free Writing Prospectus, included or will
include any untrue statement of a material fact or omitted or will
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
information contained in or omitted from any Issuer Free Writing
Prospectus (as defined below), in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf
of any Underwriter through the Representatives, specifically for
use therein, it being understood and agreed that the only such
information is that described in Section 13. As used in
this Agreement:
“Applicable
Time” means 12:30 p.m. (New York time) on the date of
this Agreement.
“Statutory
Prospectus” means the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time, including
any document incorporated by reference therein and any prospectus
supplement (including any preliminary prospectus supplement) deemed
to be a part thereof.
2
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Act,
relating to the Notes in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g) under the Act.
“General Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is identified on Schedule II to this
Agreement.
“Limited Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
(c)
The Company has been incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its
properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus. Each of the subsidiaries of the Company has been
duly incorporated or formed and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation, with all power and authority to own or lease its
properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus. The Company and each of its subsidiaries are duly
qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification, except to
the extent that the failure to be so qualified, individually or in
the aggregate, would not reasonably be expected to have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”). The outstanding shares of capital stock of
each of the Company’s subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and are owned
by the Company or another of its subsidiaries free and clear of all
liens, encumbrances and equities and claims.
(d)
The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus under the caption
“Capitalization” (and any similar section or
information contained in the General Disclosure
Package).
(e)
The Commission has not issued an order preventing or suspending the
use of the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Notes, and no proceeding for that purpose
or pursuant to Section 8A of the Act has been instituted or,
to the Company’s knowledge, threatened by the
Commission. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will contain,
all statements which are required to be stated therein by, and will
conform in all material respects to, the requirements of the Act,
the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and the Rules and Regulations.
The documents incorporated, or to be incorporated, by reference in
the Prospectus, at the time filed with the Commission, conformed,
or will conform, in all material respects to the requirements of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations of
the Commission thereunder. The Registration Statement, as of
its
3
effective date, and any amendment thereto, as
of its effective date, did not contain, and will not contain, any
untrue statement of a material fact and did not omit, and will not
omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. As
of the date of the Prospectus, as of the date of any amendments and
supplements thereto and as of the Closing Date, the Prospectus and
any such amendments or supplements did not contain, and will not
contain, any untrue statement of a material fact, and did not omit,
and will not 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) information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use therein, it being
understood and agreed that the only such information is that
described in Section 13 and (ii) that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act.
(f)
Each Issuer Free Writing Prospectus, as of its date and at all
subsequent times through the completion of the public offer and
sale of the Notes or until any earlier date that the Company
notified or notifies the Representatives, did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, any Preliminary Prospectus not superseded or modified or
the Prospectus, including any document incorporated by reference
and any Prospectus Supplement deemed to be a part thereof that has
not been superseded or modified.
(g)
The Company has not, directly or indirectly, distributed and will
not distribute any offering material in connection with the
offering and sale of the Notes other than any Preliminary
Prospectus, the Prospectus and other materials, if any, permitted
under the Act and consistent with Section 4(b) and
4(c) below. The Company will file with the Commission
all Issuer Free Writing Prospectuses in the time and manner
required under Rules 163(b)(2) and 433(d) under the
Act.
(h)
(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) under 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),
(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
Notes in reliance on the exemption of Rule 163 under the Act
and (iv) at the date hereof, the Company is a
“well-known seasoned issuer” as defined in
Rule 405 under the Act. The Company has not received
from the Commission any notice pursuant to
Rule 401(g)(2) under the Act objecting to the use of the
automatic shelf registration form.
(i)
(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) under the Act) of the Notes and
(ii) as of the date hereof (with
4
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
under the Act, without taking into account any determination by the
Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an ineligible issuer),
including, without limitation, for purposes of Rules 164 and
433 under the Act with respect to the offering of the Notes as
contemplated by the Registration Statement.
(j)
Ernst & Young LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, the
General Disclosure Package and the Prospectus, is an independent
registered public accounting firm with respect to the Company and
each of its subsidiaries within the meaning of the Act and the
applicable Rules and Regulations and the Public Company
Accounting Oversight Board (United States) (the
“PCAOB”).
(k)
There is no action, suit, claim or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of
its subsidiaries before any court or administrative agency or
otherwise which if determined adversely to the Company or any of
its subsidiaries would either (i) reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect
or (ii) prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration
Statement, the General Disclosure Package and the
Prospectus.
(l)
The Company and its subsidiaries have good and marketable title 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 liens, encumbrances and
defects as are described in the Registration Statement, the General
Disclosure Package and the Prospectus or such as would not have 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 would not, individually or in the aggregate, have a Material
Adverse Effect.
(m)
Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, there
has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole.
(n)
Neither the Company nor any of its subsidiaries is or with the
giving of notice or lapse of time or both, will be, (i) in
violation of its certificate or articles of incorporation, by-laws,
certificate of formation, limited liability agreement, partnership
agreement or other organizational documents or (ii) in
violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party
or by which it, or any of its properties, is bound, except solely
with respect to this clause (ii), for any such violation or default
that would not reasonably be expected to have a Material Adverse
Effect. The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions herein
and
5
therein contemplated and the fulfillment of the
terms hereof and thereof (including, without limitation, the
issuance and sale of the Notes to the Underwriters) will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, (x) any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any of its subsidiaries is a party,
(y) the certificate of incorporation or by-laws of the Company
or (z) any law, order, rule or regulation judgment,
order, writ or decree applicable to the Company or any of its
subsidiaries of any court or of any government, regulatory body or
administrative agency or other governmental body having
jurisdiction, except, solely with respect to clauses (x) and
(z), for any such conflict, breach or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(o)
This Agreement has been duly authorized, executed and delivered by
the Company.
(p)
The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the
Notes. The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes have been duly and
validly authorized by the Company and, when executed by the Company
and authenticated by the Trustee in accordance with the provisions
of the Indenture and when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against
the Company in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally,
and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(collectively, the “Enforceability
Exceptions”).
(q)
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly qualified under the
Trust Indenture Act of 1939. The Indenture has been duly and
validly authorized by the Company and (assuming the due
authorization, execution and delivery by the Trustee) constitutes a
valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that the
enforcement thereof may be subject to the Enforceability
Exceptions.
(r)
Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution
and delivery by the Company of this Agreement and the consummation
of the transactions herein contemplated (except such additional
steps as may be required by the Commission, the Financial Industry
Regulatory Authority, Inc. (“FINRA”) or such
additional steps as may be necessary to qualify the Notes for
public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made and is in full force and
effect.
6
(s)
The Company and its subsidiaries possess all certificates,
authorizations, approvals, licenses, registrations and permits
issued by appropriate Federal, state or foreign regulatory
authorities necessary to conduct their respective businesses,
except where the failure to possess such certificates,
authorizations, approvals, licenses, registrations or permits would
not have a Material Adverse Effect.
(t)
The Company is not, and after giving effect to the offering and
sale of the Notes contemplated hereunder and the application of the
net proceeds from such sale as described in the Prospectus, will
not be an “investment company” within the meaning of
such term under the Investment Company Act of 1940, as amended (the
“1940 Act”), and the rules and regulations of the
Commission thereunder.
(u)
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. As of
December 31, 2007, the Company’s internal control over
financial reporting was effective, and the Company is not aware of
any material weaknesses in its internal control over financial
reporting.
(v)
The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is reasonable
for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies
engaged in similar businesses.
(w)
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 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 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.
(x)
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
7
officer by others within those entities; and as
of December 31, 2007 such disclosure controls and procedures
were effective.
(y)
The Notes and the Indenture will conform in all material respects
to the descriptions thereof in the Prospectus and the General
Disclosure Package and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(z)
The Company and its subsidiaries (i) are 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 all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(aa)
Except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(bb)
No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any of its
subsidiaries’ principal suppliers, manufacturers, customers
or contractors, which, in either case, would reasonably be expected
to have a Material Adverse Effect.
2.
Purchase, Sale and
Delivery of the Notes .
(a)
On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions
herein set forth, the Company agrees to issue and sell to the
Underwriters, and the Underwriters, acting severally and not
jointly, agree to purchase the Notes in the respective principal
amounts set forth on Schedule I hereto from the Company at 99.309%
of their principal amount. One or more global certificates in
book-entry form for the Notes that the Underwriters have agreed to
purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Underwriters request upon
notice to the Company at least 36 hours prior to the Closing Date,
shall be delivered by or on behalf of the Company to the
Underwriters, against payment by or on behalf of the Underwriters
of the purchase price therefor by wire transfer (immediately
available funds), to such account or accounts as the Company shall
specify prior to the Closing Date. Delivery of the Notes shall be
made through the facilities of the Depository Trust Company, or by
such means as
8
the parties hereto
shall agree prior to the Closing Date. Such delivery of and
payment for the Notes shall be made at the offices of Sidley Austin
LLP, 787 Seventh Ave, New York, New York, 10019 at 10:00 A.M.,
New York time, on March 25, 2008, or at such other place, time
or date as the Underwriters, on the one hand, and the Company, on
the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the “Closing
Date.” The Company will make such global certificate or
certificates for the Notes available for checking and packaging by
the Underwriters at the offices of Deutsche Bank Securities Inc. in
New York, New York, or at such other place as Deutsche Bank
Securities Inc. may designate, at least 24 hours prior to the
Closing Date.
3.
Offering by the
Underwriters .
It is understood
that the several Underwriters are to make a public offering of the
Notes as soon as the Representatives deem it advisable to do
so. The Notes are to be initially offered to the public at
the initial public offering price set forth in the General
Disclosure Package and the Prospectus. The Representatives
may from time to time thereafter change the public offering price
and other selling terms.
4.
Covenants of the
Company .
The Company
covenants and agrees with the several Underwriters that:
(a)
The Company will (A) prepare and timely file with the
Commission under Rule 424(b) (without reliance on
Rule 424(b)(8)) under the Act a Prospectus in a form approved
by the Representatives containing information previously omitted at
the time of effectiveness of the Registration Statement in reliance
on Rule 430A, 430B or 430C under the Act, (B) not, prior
to the completion of the distribution of the Notes by the
Underwriters, file any amendment to the Registration Statement or
distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference
therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives
shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (C) file on
a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and prior to the
completion of the distribution of the Notes by the
Underwriters.
(b)
The Company will (i) not make any offer relating to the Notes
that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus”
(as defined in Rule 405 under the Act) required to be filed by
the Company with the Commission under Rule 433 under the Act
unless the Representatives approve its use in writing prior to
first use (each, a “Permitted Free Writing
Prospectus”); provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in
respect of the Issuer Free Writing Prospectus(es) included in
Schedule II hereto, (ii) treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, (iii) comply
with the requirements of Rules 163, 164 and 433 under the Act
applicable to any Issuer Free Writing Prospectus,
9
including the requirements relating to timely
filing with the Commission, legending and record keeping and
(iv) not take any action that would result in an Underwriter
or the Company being required to file with the Commission pursuant
to Rule 433(d) under the Act a free writing prospectus
prepared by or on behalf of such Underwriter that such Underwriter
otherwise would not have been required to file
thereunder.
(c)
The Company will prepare a final term sheet (the “Final Term
Sheet”) reflecting the final terms of the Notes, in form and
substance satisfactory to the Representatives, and shall file such
Final Term Sheet as an Issuer Free Writing Prospectus pursuant to
Rule 433 under the Act prior to the close of business two
business days after the date hereof; provided that the Company
shall provide the Representatives with copies of any such Final
Term Sheet a reasonable amount of time prior to such proposed
filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall reasonably
object.
(d)
The Company will advise the Representatives promptly (A) when
any post-effective amendment to the Registration Statement or new
registration statement relating to the Notes shall have become
effective, or any supplement to the Prospectus shall have been
filed, (B) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or the
General Disclosure Package, (C) of any request of the
Commission for amendment of the Registration Statement or the
filing of a new registration statement or any amendment or
supplement to the General Disclosure Package or the Prospectus or
for any additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or such new registration statement or any
order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
or of the institution of any proceedings for that purpose or
pursuant to Section 8A of the Act. The Company will use
its best efforts to prevent the issuance of any such order and to
obtain as soon as possible the lifting thereof, if
issued.
(e)
If at any time when Notes remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to
Rule 401(g)(2) under the Act or otherwise ceases to be
eligible to use the automatic shelf registration statement form,
the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Notes,
in a form satisfactory to the Representatives, (iii) use its
best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable (if such
filing is not otherwise effective immediately pursuant to
Rule 462 under the Act), and (iv) promptly notify the
Representatives of such effectiveness. The Company will take
all other action necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in the
Registration Statement that was the subject of the notice under
Rule 401(g)(2) under the Act or for which the Company has
otherwise become ineligible. References herein to the
Registration Statement relating to the Notes shall include such new
registration statement or post-effective amendment, as the case may
be.
10
(f)
The Company agrees to pay the required filing fees to the
Commission relating to the Notes within the time required by
Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Act.
(g)
The Company will cooperate with the Representatives in endeavoring
to qualify the Notes for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated
in writing and will make such applications, file such documents,
and furnish such information as may be reasonably required for that
purpose; provided the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time
to time, prepare and file such statements, reports, and other
documents, as are or may be required to continue such
qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the
Notes.
(h)
The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any
Preliminary Prospectus or any Issuer Free Writing Prospectus as the
Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus (or, in lieu thereof, the
notice referred to under Rule 173(a) under the Act) is
required by law to be delivered by an Underwriter or dealer (the
“Prospectus Delivery Period”), as many copies of the
Prospectus in final form, or as thereafter amended or supplemented,
as the Representatives may reasonably request. The Company
will deliver to the Representatives at or before the Closing Date,
four photocopies of the signed Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested),
including documents incorporated by reference therein, and of all
amendments thereto, as the Representatives may reasonably
request.
(i)
The Company will comply with the Act, the Rules and
Regulations, the Exchange Act and the Trust Indenture Act, and the
rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Notes as
contemplated in this Agreement and the Prospectus. If during
the Prospectus Delivery Period, any event shall occur as a result
of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to
comply with any law, the Company promptly will either
(i) prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be
incorporated by reference in the Prospectus so that the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
11
(j)
If the General Disclosure Package is being used to solicit offers
to buy the Notes at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur as a result of
which, in the judgment of the Company or in the reasonable opinion
of the Underwriters, it becomes necessary to amend or supplement
the General Disclosure Package in order to make the statements
therein, in the light of the circumstances existing at the time the
General Disclosure Package is being used, not misleading, or to
make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is
necessary at any time to amend or supplement the General Disclosure
Package to comply with any law, the Company promptly will either
(i) prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package or
(ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by
reference in the General Disclosure Package so that the General
Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when it is so used, be
misleading or conflict with the Registration Statement then on
file, or so that the General Disclosure Package will comply with
law.
(k)
The Company will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later
than 15 months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an
earnings statement (which need not be audited) in reasonable
detail, complying with the requirements of
Section 11(a) of the Act and Rule 158 under the
Act.
(l)
During the period beginning on the date hereof and continuing to
the date that is 90 days after the Closing Date, without the prior
written consent of Deutsche Bank Securities Inc., the Company will
not offer, sell, contract to sell or otherwise dispose of, except
as provided hereunder, any securities of the Company (or guaranteed
by the Company) that are substantially similar to the
Notes.
5.
Certain Agreements of
the Underwriters .
(a)
Each Underwriter hereby represents and agrees that:
(i)
It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any “free writing
prospectus”, as defined in Rule 405 under the Securities
Act (which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference
into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely
as a result of use by such Underwriter, would not trigger an
obligation to file such free writing prospectus with the Commission
or is not required to be retained by the Company pursuant to
Rule 163 or Rule 433, (ii) any Issuer Free Writing
Prospectus listed on Schedule II or prepared pursuant to
Section 4(b) or Section 4(c) above, or
(iii) any free writing prospectus prepared by such Underwriter
and approved by the Company in advance in writing.
12
(ii)
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
“Relevant Member State”), with effect from and
including the date on which the Prospectus Directive is implemented
in that Relevant Member State (the “Relevant Implementation
Date”) it has not made and will not make an offer of Notes
which are the subject of the offering contemplated by the
Prospectus Supplement to the public in that Relevant Member State
other than:
(A)
to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(B)
to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a
total balance sheet of more than €43,000,000; and (3) an
annual net turnover of more than €50,000,000, as shown in its
last annual or consolidated accounts;
(C)
to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the lead Underwriters;
or
(D)
in any other circumstances falling within Article 3(2) of
the Prospectus Directive,
provided that no such offer of Notes shall
require the Company or any Underwriter to publish a prospectus
pursuant to Article 3 of the Prospectus Directive or
supplement a prospectus pursuant to Article 16 of the
Prospectus Directive. For the purposes of this provision, the
expression an “offer of notes to the public” in
relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Notes to be offered
so as to enable an investor to decide to purchase or subscribe the
Notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State
and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any relevant implementing measure
in each Relevant Member State.
(b)
Each Underwriter advises the Company that:
(i)
it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act 2000 (the
“FSMA”)) received by it in connection with the issue or
sale of the Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Company;
and
(ii)
it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United
Kingdom.
13
6.
Costs and
Expenses .
The Company will
pay all costs, expenses and fees incident to the performance of the
o
|
