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Exhibit 1.1
MONSANTO COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
April 10, 2008
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Monsanto Company, a Delaware
corporation (the “Company”), proposes to enter into one
or more Pricing Agreements (each, a “Pricing
Agreement”), substantially in the form of Schedule I attached
hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms
constituting the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) certain of
its debt securities (the “Securities”) specified in
Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Designated Securities”).
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing
Agreement relating thereto and in or pursuant to the Indenture,
dated as of August 1, 2002, between the Company and The Bank of New
York Trust Company, N.A., as trustee (the
“Indenture”).
1. Pricing Agreements. Particular sales
of Designated Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase any of the Securities. The
obligation of the Company to issue and sell any of the Securities
and the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of
such Designated Securities, the initial public offering price of
such Designated Securities, the purchase price to the Underwriters
of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated
Securities to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the Registration
Statement, as defined below) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an
exchange of electronic communications or other transmission method
satisfactory to the Company and the Representatives. The
obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
At or prior to the time when sales of the Designated
Securities will be first made (the “Time of Sale”), the
Company will prepare the Time of Sale Information (as defined
below) for such offering of Securities.
As used herein, the Time of Sale Information means
(i) the Preliminary Prospectus (as defined below) used most
recently prior to the Time of Sale, (ii) the final term sheet
prepared and filed pursuant to Rule 433 under the Securities Act of
1933, as amended (the “Act”) in the form of Schedule IV
to the Pricing Agreement, (iii) the Issuer Free Writing
Prospectuses (as defined below), if any, identified in Schedule III
to the Pricing Agreement, and (iv) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package.
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement in respect
of the Securities (No. 333-125193, which also constitutes
Post-Effective Amendment No. 1 to the Company’s prior
registration statement No. 333-88542) has been filed with the
Securities and Exchange Commission (the “Commission”);
such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in
the prospectus contained therein, to the Representatives for each
of the other Underwriters, have been declared effective by the
Commission in such; other than a registration statement, if any,
increasing the size of the offering (a “Rule 462(b)
Registration Statement”), filed pursuant to Rule 462(b) under
the Act, which became effective upon filing, no other document with
respect to such registration statement has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued, no proceeding for that purpose
has been initiated or threatened 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 threatened by the Commission (any preliminary prospectus or
preliminary prospectus supplement included in such registration
statement or filed with the Commission pursuant to Rule 424(a) or
(b) of the rules and regulations of the Commission under the Act,
being hereinafter called a “Preliminary Prospectus”;
the various parts of such registration statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, including all exhibits thereto, the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, but excluding Forms T-1, each as
amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Act to be part of the registration statement at the time
of its effectiveness (“Rule 430 Information”), being
herein collectively called the “Registration
Statement”; the prospectus relating to the Securities, in the
form in which it was first used (or made available upon request of
purchasers pursuant to Rule 173 under the Act) in connection with
confirmation of sales of the Securities, being hereinafter called
the “Prospectus”; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to an amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as most
recently amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by
reference
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therein as of the date of such filing); and the term
“Effective Time” means the effective date of the
Registration Statement with respect to the offering of
Securities.
(b) The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(c) As of the Effective Time, the
Registration Statement and the Prospectus conformed, and any
further amendments or supplements to the Registration Statement or
the Prospectus and any Rule 462(b) Registration Statement will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1933, as amended (the “Trust
Indenture Act”) and the rules and regulations of the
Commission thereunder and did not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such
Securities;
(d) The Time of Sale Information, at the
Time of Sale and at the Time of Delivery (as defined below) did not
and will not contain 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 that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representative expressly for use in such Time of Sale
Information. No statement of material fact included in the Time of
Sale Information that is required to be included in the Prospectus
will be omitted from the Prospectus.
(e) The Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i), (ii) and
(iii) below) an “Issuer Free Writing Prospectus”) other
than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (ii) any
Preliminary Prospectus, (iii) the Prospectus, (iv) the Time of Sale
Information and (v) any electronic road show or other written
communications, in each case approved in advance by the
Representative. Each such Issuer Free Writing Prospectus complied
or will comply in all material respects with the Act, has been or
will be (within the time period specified in Rule 433) filed in
accordance with the Act (to the extent required thereby) and, when
taken together with the Preliminary Prospectus or Prospectus
(including any amendments or supplements thereto) accompanying, or
delivered prior to delivery of, or filed prior to the first use of
such Issuer Free Writing Prospectus, did not, and at the Time of
Delivery will
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not, contain 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 that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representative expressly for use in any Issuer Free
Writing Prospectus.
(f) Since the respective dates as of
which information is given in the Registration Statement, the
Prospectus and the Time of Sale Information, there has not been any
material change in the capital stock (other than changes in
treasury stock within limits, or pursuant to employee plans,
disclosed or incorporated by reference in the Prospectus and the
Time of Sale Information) or long-term debt of the Company and its
subsidiaries considered as a whole or any material adverse change,
or any development known to the Company involving a prospective
material adverse change, in or affecting the business, financial
position, shareowners’ equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Prospectus and the Time of Sale
Information (including the documents incorporated
therein);
(g) 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 its properties and conduct its business
as described in the Prospectus and the Time of Sale Information,
and has been duly qualified as a foreign corporation for the
transaction of business and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
where the ownership and leasing of its properties or the conduct of
its business requires such qualification, except where the failure
to so qualify would not reasonably be expected to have a material
adverse effect on the business, financial condition,
shareowners’ equity or results of operations of the Company
and its consolidated subsidiaries taken as a whole (a
“Material Adverse Effect”). Each subsidiary of the
Company whose sales or total assets for the most recent fiscal year
exceeded 5% of the consolidated sales or total assets,
respectively, of the Company and its subsidiaries (each, a
“Principal Subsidiary” and collectively, the
“Principal Subsidiaries”) has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power
and authority to own its properties and to conduct its business and
has been duly qualified as a foreign corporation for the
transaction of business and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
where the ownership and leasing of its properties or the conduct of
its business requires such qualification, except where the failure
to so qualify would not reasonably be expected to have a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, the Prospectus and the Time of Sale Information, all of
the issued and outstanding capital stock or other ownership
interests of each Principal Subsidiary of the Company 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 except for such security interests, mortgages, pledges,
liens, encumbrances, claims or equities that are immaterial to the
Company and its subsidiaries taken as a whole;
(h) The Company has an authorized
capitalization as set forth in the Prospectus and the Time of Sale
Information, 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;
(i) The Securities have been duly
authorized, and, when Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities
will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and at each Time of
Delivery for such Designated Securities (as defined in Section
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hereof), the Indenture will have been duly executed
and delivered by the Company and will constitute a valid and
legally binding instrument of the Company, enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors’ rights and will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture conforms, and the Designated Securities
will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities and the applicable Time of Sale Information;
and this Agreement and the Pricing Agreement relating to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(j) The issue and sale of the Securities
and the compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and
therein contemplated will not 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 pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, other than
such as would not 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, the Agreement or any Pricing Agreement; nor will such
action result in any violation of the provisions of the Certificate
of Incorporation, as amended, or the By-Laws of the Company; nor
will any such action 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 properties other than such as would not 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, this Agreement or any Pricing
Agreement (except to the extent that the issue and sale of the
Securities as contemplated by this Agreement and the distribution
of the Securities by the Underwriters may result in violations of
state securities or Blue Sky laws); and except as set forth in the
Registration Statement, the Prospectus and the Time of Sale
Information, 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
issue and sale of the Securities or the consummation by the Company
of the other transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or
will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities as contemplated by this
Agreement and any Pricing Agreement and the distribution of the
Securities by the Underwriters;
(k) There are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject, other than as set forth in the
Prospectus and the Time of Sale Information and other than those
which individually or in the aggregate will not have a Material
Adverse Effect; and, to the best of the Company’s knowledge,
no such proceedings are contemplated by governmental authorities;
and
(l) Deloitte & Touche LLP, who has
audited certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm
within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Act.
(m) The audited financial statements, and
the related notes thereto, included or incorporated by reference in
the Registration Statement, the Prospectus and the Time of Sale
Information present fairly the consolidated financial position of
the Company and its subsidiaries, and its results of operations
and
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consolidated cash flows, as of the dates and for the
periods indicated, and said financial statements have been prepared
in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods indicated, except as
otherwise stated therein; the unaudited consolidated financial
statements and the related notes thereto included or incorporated
by reference in the Registration Statement, the Prospectus and the
Time of Sale Information present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates and
for the periods indicated and its results of operations and
consolidated cash flows, subject to any year-end audit adjustments,
and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein and have been
prepared on a basis substantially consistent with that of the
audited financial statements referred to above except as otherwise
stated therein; any selected financial and statistical data
included in the Registration Statement, the Prospectus and the Time
of Sale Information present fairly the information shown therein
and have been prepared and compiled on a basis consistent with the
audited and unaudited financial statements for the Company, except
as otherwise stated therein. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related
notes thereto included or incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale
Information present fairly the information shown therein, comply as
to form in all material respects with the applicable accounting
requirements of Regulation S-X under the Act and have been properly
compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein;
(n) The Company is not aware of any valid
and enforceable patent and proprietary rights (as defined herein)
that are presently employed by the Company or its Principal
Subsidiaries in connection with the business now operated by them
and that are not licensed to the Company or its Principal
Subsidiaries, where the lack of such license would reasonably be
expected to have a Material Adverse Effect. The Company does not
believe that any patent and proprietary right that it owns is
invalid or unenforceable, where such invalidity or unenforceability
would result in a Material Adverse Effect. For purposes of this
section, “patent and proprietary rights” shall mean
patents, copyrights, know-how, trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures, trademarks, service marks and trade names;
and
(o) Except as otherwise stated in the
Registration Statement, the Prospectus and the Time of Sale
Information and except as would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse
Effect, (A) neither the Company nor any of its Principal
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”), and (B) neither the Company
nor any of its Principal Subsidiaries fails to possess any permit,
authorization or approval required under any applicable
Environmental Laws or to be in compliance with their
requirements.
(p) 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
Registration Statement, the Prospectus and the Time of Sale
Information, will not be an “investment company” or an
entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company
Act”).
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(q) The Company is not an ineligible
issuer as defined in Rule 405 under the Act at all applicable times
in connection with the offering of the Securities.
(r) There is and has been no failure on
the part of the Company or 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 related to loans and Sections
302 and 906 related to certifications.
(s) The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules
and forms, including controls and procedures designed to ensure
that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions
regarding required disclosure. The Company and its subsidiaries
have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of
the Exchange Act.
(t) The Company and its subsidiaries
maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
that comply with the requirements of the Exchange Act and have been
designed by, or under the supervision of their respective principal
executive and principal financial officers, or persons performing
similar functions, 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, including, but not limited to
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
Except as disclosed in the Registration Statement, the Prospectus
and the Time of Sale Information, there are no material weaknesses
in the Company’s internal controls.
(u) 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 of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, 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.
(v) None of the Company, any of its
subsidiaries or, 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 U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company
will not knowingly, directly or indirectly, use the proceeds of the
offering of the Securities hereunder, 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.
(w) Except as disclosed in the Prospectus
and the Time of Sale of Information, neither the Company nor any of
its subsidiaries nor, to the best knowledge and belief of the
officers of the Company and its subsidiaries, 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
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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.
3. Offering of Designated Securities. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the representatives of
the release of such Designated Securities, the several Underwriters
propose to offer such Designated Securities for sale upon the terms
and conditions set forth in the Prospectus as amended or
supplemented.
4. Purchase of Designated Securities. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form
specified in the Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives
may request upon at least forty-eight hours’ prior notice to
the Company, shall be delivered by or on behalf of the Company to
the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price
therefor, which payment, unless otherwise specified in the Pricing
Agreement, shall be made by wire transfer of immediately available
funds to the account specified by the Company by written notice to
the Representatives delivered at least forty-eight hours in
advance, all at the place and time and date specified in such
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such
time and date being herein called the “Time of
Delivery” for such Securities.
5. Agreements of the Company. The
Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended
and supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission’s close of business on the second
business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b) and
Rule 430A, 430B or 430C under the Act; to file any Issuer Free
Writing Prospectus (including the Term Sheet in the form of
Schedule IV to the Pricing Agreement) to the extent required by
Rule 433 under the Act; not to make, prepare, use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus, and
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Securities and prior to
the Time of Delivery for such Securities, in any case, which shall
be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after
such Time of Delivery
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