Exhibit 1.1
EXECUTION COPY
NEWELL RUBBERMAID INC.
$500,000,000 5.50% Notes Due 2013
$250,000,000 6.25% Notes Due 2018
Underwriting Agreement
March 25, 2008
To the
Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies
and Gentlemen:
Newell
Rubbermaid Inc., a Delaware corporation (the
“Company”), proposes to sell, severally and not
jointly, to the underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its 5.50% Notes Due 2013 (the “2013
Securities”) and its 6.25% Notes Due 2018 identified in
Schedule I hereto (the “2018 Securities” and,
together with the 2013 Securities, the “Securities”),
to be issued under the senior indenture (the
“Indenture”) dated as of November 1, 1995, between
Newell Rubbermaid Inc. (formerly Newell Co.) and The Bank of New
York Trust Company, N.A. (as successor to JPMorgan Chase Bank,
formerly The Chase Manhattan Bank (National Association)), as
trustee (the “Trustee”), relating to senior debt
securities. If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto,
then the terms “Underwriters” and
“Representatives,” as used herein, shall each be deemed
to refer to such firm or firms.
The
Company has filed with the Securities and Exchange Commission (the
“SEC”) a registration statement on Form S-3
(No. 333-149887) for the registration of securities, including
the Securities, under the Securities Act of 1933, as amended (the
“1933 Act”), and the offering of such Securities from
time to time in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the “1933 Act
Regulations”). Such registration statement has become
effective, and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the “1939 Act”).
Such registration statement, as used with respect to the
Securities, including the information deemed a part thereof
pursuant to Rule 430B(f)(1) under the 1933 Act, on the date of
such registration statement’s effectiveness for purposes of
Section 11 of the 1933 Act, as such Section applies to the
Company and the Underwriters for the Securities pursuant to
Rule 430B(f)(2) under the 1933 Act (the “Effective
Date”), including the exhibits thereto and all documents
incorporated therein by reference pursuant to Item 12 of
Form
S-3 at
the Effective Date, is hereinafter referred to as the
“Registration Statement”; the base prospectus relating
to the Securities in the form in which it has most recently been
filed with the SEC on or prior to the date hereof being herein
called the “Basic Prospectus”; the Basic Prospectus as
amended and supplemented by a preliminary prospectus supplement
relating to the Securities and as further amended and supplemented
immediately prior to the time set forth on Schedule I
as the “Applicable Time” (the “Applicable
Time”) is hereinafter called the “Pricing
Prospectus”; the Basic Prospectus as amended or supplemented
in final form, which is filed with the SEC pursuant to Rule 424(b)
under the 1933 Act with respect to the Securities is hereinafter
called the “Final Supplemented Prospectus”; any
reference herein to the Basic Prospectus, any Pricing Prospectus or
any Final Supplemented Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, as of the date of such
Basic Prospectus, Pricing Prospectus or Final Supplemented
Prospectus, as the case may be; any reference to any amendment or
supplement to the Basic Prospectus, any Pricing Prospectus or any
Final Supplemented Prospectus shall be deemed to refer to and
include any documents filed after the date of such Basic
Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and incorporated by reference
in such Basic Prospectus, Pricing Prospectus or Final Supplemented
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the 1934 Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement. The Pricing Prospectus and any Permitted Free Writing
Prospectus (as defined below) listed on Annex A hereto, taken
together, are referred to as the “Pricing Disclosure
Package.”
In
accordance with the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)), the
underwriters are required to obtain, verify and record information
that identifies their respective clients, including the Company,
which information may include the name and address of their
respective clients, as well as other information that will allow
the underwriters to properly identify their respective
clients.
1. Representations and
Warranties.
(a)
Representations and Warranties . The Company represents and
warrants to the Underwriters as of the date hereof and as of the
Closing Date (as defined below) (each of the Closing Date and the
date hereof being referred to as a “Representation
Date”), as follows:
(i)
Due Incorporation and Qualification . The Company has been
duly 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, lease and operate its properties and to
conduct its business as described in the Pricing Disclosure Package
and the Final Supplemented Prospectus and to enter into and perform
its obligations under this Agreement, the Indenture and the
Securities; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in 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 to so qualify or be in good
standing would not have a material adverse effect on the
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condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a “Material Adverse
Effect”).
(ii)
Subsidiaries . Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act (each a
“Significant Subsidiary”) has been duly incorporated
and is validly existing as a corporation (or, in the case of a
Significant Subsidiary that is not a corporation, duly formed or
organized, as the case may be, as the applicable type of entity) in
good standing under the laws of the jurisdiction of its
incorporation (or, if applicable, formation or organization), has
power and authority to own, lease and operate its properties and to
conduct its business as described in the Pricing Disclosure Package
and the Final Supplemented Prospectus and is duly qualified as a
foreign corporation (or applicable type of entity) to transact
business and is in good standing in 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 to so qualify or be in good standing would not have a
Material Adverse Effect; and all of the issued and outstanding
capital stock (or, in the case of a Significant Subsidiary that is
not a corporation, the partnership, membership, joint venture or
other ownership or equity interests), owned directly or indirectly
by the Company, of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
is so owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
(iii)
Registration Statement and Prospectus . The Registration
Statement complies and the Final Supplemented Prospectus will
comply, and any further amendments or supplements thereto, when any
such amendments become effective or supplements are filed with the
SEC, as the case may be, will comply, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the SEC under the
1939 Act (the “1939 Act Regulations”) and the
Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus do not and will not, (A) as of
the Effective Date as to the Registration Statement and any
amendment thereto, (B) as of the Applicable Time as to the
Pricing Disclosure Package and (C) as of the date of the Final
Supplemented Prospectus as to the Final Supplemented Prospectus or
as of the date when any supplement is filed as to the Final
Supplemented Prospectus as further supplemented, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in
the case of the Registration Statement and any amendment thereto,
and, in the light of the circumstances under which they were made,
not misleading in the case of the Pricing Disclosure Package and
the Final Supplemented Prospectus as further supplemented; except
that the Company makes no representations or warranties with
respect to (1) that part of the Registration Statement which
shall constitute the Statements of Eligibility (Form T-1) under the
Trust Indenture Act or (2) statements or omissions made in a
Permitted Free Writing Prospectus, the Registration Statement, the
Pricing Prospectus or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly
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 on Schedule I hereof.
Each Permitted Free Writing Prospectus does not include anything
that conflicts with the information contained in the Registration
Statement, the Pricing
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Prospectus or the Final Supplemented Prospectus, and each such
Permitted Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, 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, except that the Company makes no
representation or warranty with respect to any statement or
omissions made in a Permitted Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly
for use therein. The Pricing Disclosure Package and each electronic
road show, when taken together as a whole with the Pricing
Disclosure Package, does 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 Pricing
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 on
Schedule I hereof.
(iv)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement or the Pricing Prospectus, at the time they were filed
with the SEC, complied in all material respects with the
requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the “1934 Act Regulations”),
and as of such time of filing, when read together with the Pricing
Prospectus and any Permitted Free Writing Prospectus, 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, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Final Supplemented Prospectus or any further amendment or
supplement thereto, when such documents are filed with the SEC,
will comply in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations, and when read together with
the Final Supplemented Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
(v)
Well Known Seasoned Issuer . (A) At the time of filing
the Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the 1934 Act or form of prospectus),
(C) 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 (D) at the Applicable Time
(with such date being used as the determination date for purposes
of this clause (D)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in
Rule 405. The Company agrees to pay the fees required by the
SEC relating to the Securities within the time required by
Rule
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456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(vi)
Accountants . Ernst & Young LLP, who audited certain
financial statements of the Company and its consolidated
subsidiaries, was, at the time of such audit, an independent
registered public accounting firm with respect to the Company
within the meaning of the 1933 Act and the 1933 Act Regulations and
under the applicable rules and regulations of the Public Company
Accounting Oversight Board.
(vii)
Financial Statements . The financial statements included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus, the Pricing Disclosure Package and the Final
Supplemented Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations
for the periods specified; except as otherwise stated in the
Registration Statement, the Pricing Prospectus, the Pricing
Disclosure Package and the Final Supplemented Prospectus, said
financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Final
Supplemented Prospectus present fairly the information required to
be stated therein.
(viii)
Authorization and Validity of this Agreement, the Indenture and
the Securities . This Agreement has been duly and validly
authorized, executed and delivered by the Company; the Indenture
has been duly and validly authorized, executed and delivered by the
Company and is a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors’ rights generally or by general
equity principles; the Securities have been duly and validly
authorized for issuance, offer and sale pursuant to this Agreement
and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement, the Indenture and the Officers’
Certificates with respect to the Securities heretofore delivered by
the Company to the Trustee (the “Officers’
Certificates”) against payment of the consideration therefor
specified in the Pricing Disclosure Package and the Final
Supplemented Prospectus, the Securities will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting enforcement of
creditors’ rights generally or by general equity principles;
the Securities and the Indenture will be substantially in the form
heretofore delivered to the Underwriters, and each holder of the
Securities will be entitled to the benefits provided by the
Indenture.
(ix)
Material Changes or Material Transactions . Since the
respective dates as of which information is given in the
Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus, except as may otherwise be stated
therein or contemplated thereby, (A) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of
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business, (B) there have been no transactions entered into by
the Company or any of its subsidiaries that are material to the
Company and its subsidiaries considered as one enterprise, other
than those in the ordinary course of business, and (C) except
for regular dividends on the Company’s common stock or
preferred stock in amounts per share that are consistent with past
practices or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(x)
Description of the Securities and the Indenture . The
Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the
Pricing Disclosure Package and the Final Supplemented Prospectus
and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xi)
No Defaults . Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
it is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, except when such default would
not have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture and the Securities,
the compliance by the Company with its obligations hereunder and
thereunder and the consummation of the transactions contemplated
herein, therein and in the Registration Statement, the Pricing
Disclosure Package and the Final Supplemented Prospectus (including
the issuance and sale of the Securities and the use of proceeds
from the sale of the Securities as described in the Pricing
Disclosure Package and the Final Supplemented Prospectus under the
caption “Use of Proceeds”), will not conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any such
subsidiary is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
law, administrative regulation or administrative or court order or
decree of any court or governmental agency, authority or body or
any arbitrator having jurisdiction over the Company.
(xii)
Catastrophic Events . The Company has not sustained a loss
on account of fire, flood, accident, terrorism or other calamity
which materially and adversely affects the business of the Company
and its subsidiaries taken as a whole as disclosed in the
Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus, regardless of whether or not such
loss shall have been insured.
(xiii)
Legal Proceedings; Contracts . Except as set forth in the
Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, which will, in the opinion of the Company,
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result
in any Material Adverse Effect or will materially and adversely
affect the performance by the Company of its obligations under this
Agreement; and there are no contracts or documents of the Company
or any of its subsidiaries which are required to be filed or
incorporated by reference as exhibits to the Registration Statement
by the 1933 Act or by the 1933 Act Regulations which have not been
so filed or incorporated by reference.
(xiv)
Environmental Laws . Except as would not, singly or in the
aggregate, result in a Material Adverse Effect, and other than as
described or incorporated by reference in the Pricing Disclosure
Package and the Final Supplemented Prospectus, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental
Laws”), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the
Company’s or any of its subsidiaries’ knowledge,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials
or Environmental Laws.
(xv)
No Authorization, Approval or Consent Required . No
authorization, approval, consent, order or decree of any court or
governmental agency or body including the SEC is required for the
consummation by the Company of the transactions contemplated by
this Agreement or in connection with the sale of the Securities
hereunder, except such as have been obtained or rendered, as the
case may be, or as may be required under state securities
(“Blue Sky”) laws.
(xvi)
Inapplicability of Investment Company Act of 1940 . 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 Pricing Disclosure Package and the Final
Prospectus Supplement, will not be an “investment
company” or “business development company” within
the meaning of the Investment Company Act of 1940, as amended,
including the rules and regulations related thereto.
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(xvii)
Commodity Exchange Act . The Securities, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(xviii)
Foreign Corrupt Practices Act Compliance . 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.
(xix)
Anti-Money Laundering Compliance . The operations of the
Company and its subsidiaries are and have been conducted at all
times in material compliance with applicable financial
recordkeeping and reporting requirements and the money laundering
statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(xx)
Anti-Terrorism Compliance . 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.
(xxi)
Ratings . As of the date hereof, the senior unsecured long
term debt of the Company is rated Baa2 by Moody’s Investors
Service, Inc. (“Moody’s”), BBB by Fitch Inc.
(“Fitch”) and BBB+ by Standard & Poor’s
Ratings Services (“S&P”).
(xxii)
Internal Controls . The Company and each of its Significant
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of
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financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with
management’s general or specific authorization; and
(D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and its
subsidiaries’ internal controls over financial reporting are
effective and the Company and its subsidiaries are not aware of any
material weakness in their internal controls over financial
reporting. The Company and its subsidiaries maintain
“disclosure controls and procedures” (as such term is
defined in Rule 13a-15(e) under the 1934 Act); such disclosure
controls and procedures are effective. There is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply in
any material respect 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.
(xxiii)
Issuer Status . At the determination date for purposes of
the Securities within the meaning of Rule 164(h) under the 1933
Act, the Company was not an “ineligible issuer” as
defined in Rule 405 under the 1933 Act.
(b)
Additional Certifications . Any certificate signed by any
director or officer of the Company and delivered to an Underwriter
or to counsel for the Underwriters in connection with the offering
or sale of the Securities shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters
covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
2. Purchase and
Sale.
Subject
to the terms and conditions and in reliance upon the
representations and warranties set forth herein, 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 Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter’s name in
Schedule II hereto. The Underwriters may engage the services
of any other broker or dealer in connection with the resale of any
of the Securities purchased by them and may allow all or any
portion of the discount received in connection with such purchases
from the Company to such brokers and dealers.
3. Delivery and
Payment.
Delivery
of and payment for the Securities shall be made on the date and at
the time specified in Schedule I hereto (or such later date
not later than five business days after such specified 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 10 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 in Federal (same
day) funds. Delivery of the Securities shall be made at such
location as the Representatives shall reasonably designate at least
one business day in advance of the
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Closing
Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the
Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The
Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Free Writing
Prospectuses.
(a) The
Company represents and agrees that it has not made and will not
make any offer relating to the Securities that would constitute a
“free writing prospectus” as defined in Rule 405
under the 1933 Act, other than each “free writing
prospectus” listed on Annex A hereto or subsequently
consented to in writing by the Representatives (each, a
“Permitted Free Writing Prospectus”).
(b) Each
Underwriter, severally and not jointly, represents and agrees that,
without the prior consent of the Company and the Representatives,
it has not made and will not make any offer relating to the
Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the 1933 Act,
other than a Permitted Free Writing Prospectus or a free writing
prospectus that is not required to be filed by the Company pursuant
to Rule 433 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
Permitted Free Writing Prospectus attached hereto as Annex A.
(c) The
Company agrees to prepare a pricing term sheet, substantially in
the form attached hereto as Annex B, and approved by the
Representatives, and to file such pricing term sheet pursuant to
Rule 433(d) under the 1933 Act within the time period prescribed by
such Rule.
(d) The
Company has complied and will comply with the requirements of
Rule 433 under the 1933 Act applicable to any free writing
prospectus, including timely SEC filing where required and
legending.
(e) The
Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event occurred or occurs as a
result of which such Permitted Free Writing Prospectus would
conflict with the information in the Registration Statement, the
Pricing Prospectus or the Final Supplemented Prospectus or include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances then prevailing, not misleading, the
Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish
without charge to each Underwriter a free writing prospectus or
other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or
omission; provided, however, that this representation and warranty
shall not apply to any statements or omissions in a Permitted Free
Writing Prospectus made in reliance upon and
10
in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives, expressly for use
therein.
(f) The
Company agrees that if there occurs an event or development as a
result of which the Pricing Disclosure Package would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of
the circumstances then prevailing, not misleading, the Company will
promptly notify the Representatives so that any use of the Pricing
Disclosure Package may cease until it is amended or
supplemented.
5. Covenants of the
Company.
The
Company covenants with each Underwriter as follows:
(a)
Notice of Certain Events . The Company will notify the
Underwriters immediately of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal
to the SEC for filing of the Final Supplemented Prospectus or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Final Supplemented Prospectus,
(iii) the receipt of any comments from the SEC with respect to
the Registration Statement or the Final Supplemented Prospectus,
including any document incorporated by reference therein,
(iv) any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Final
Supplemented Prospectus or for additional information, and
(v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every
reasonable effort to p
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