Exhibit 1.1
Execution Version
Newfield Exploration Company
Underwriting Agreement
May 5, 2008
To the
Representatives of the several
Underwriters named in the
respective
Pricing Agreements hereinafter
described
Ladies
and Gentlemen:
From time to time Newfield
Exploration Company, a Delaware corporation (the
“Company”), proposes to enter into one or more Pricing
Agreements (each a “Pricing Agreement”) in the form of
Annex I 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 “Firm Designated Securities”).
If specified in such Pricing Agreement, the Company may grant the
Underwriters the right to purchase at their election an additional
principal amount of Securities specified in such Pricing Agreement
as provided in Section 3 hereof (the “Optional
Designated Securities”). The Firm Designated Securities and
the Optional Designated Securities, if any, which the Underwriters
elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as 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 (the “Indenture”) identified in such Pricing
Agreement.
1. Particular sales of
Designated Securities may be made from time to time to the
Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such
Designated 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 an
Underwriter or Underwriters who act without any firm being
designated as its or 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
Designated 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
the Firm Designated Securities, the maximum principal amount of
Optional Designated Securities, if any, the initial public offering
price of such Firm and Optional Designated Securities or the manner
of determining such price, the terms of the 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, the principal amount of such Designated Securities to
be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set
forth the date, time and manner of delivery of such Firm Designated
Securities and Optional Designated Securities, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the Indenture, the Registration Statement, the
Time of Sale Prospectus and the Prospectus (as defined) with
respect thereto) 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
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (File
No. 333-150622) on Form S-3, relating to securities of the
Company, including the Securities, to be issued from time to time
by the Company. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be
part of the registration statement at each time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities Act of
1933, as amended (the “Securities Act”), is hereinafter
referred to as the “Registration Statement,” and the
related prospectus covering the Securities dated May 2, 2008
in the form first used to confirm sales of the Securities (or in
the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Designated
Securities in the form first used to confirm sales of the
Designated Securities (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant
to Rule 173 under the Securities Act) is hereinafter referred
to as the “Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the Prospectus. For
purposes of this Agreement, “free writing prospectus”
has the meaning set forth in Rule 405 under the Securities
Act, and “Time of Sale Prospectus” means the
preliminary prospectus together with the free writing prospectuses,
if any, prepared by or on behalf of the Company or used or referred
to by the Company in connection with the offering of the Designated
Securities that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act (each, an
“Issuer Free Writing Prospectus”), and any other
documents or information identified in Schedule II to the Pricing
Agreement. As used herein, “effective date” or
“time of effectiveness” means any date as of which any
part of the Registration Statement became, or is deemed to have
become, effective under the Securities Act (including, for the
avoidance of doubt, any effective date with respect to the
Underwriters). As used herein and in the Pricing Agreement, the
terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and “Prospectus”
shall include the documents, if any, incorporated by reference
therein. The terms “supplement,”
“amendment,” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus,
the Time of Sale Prospectus, any preliminary prospectus or free
writing prospectus shall include all documents subsequently filed
by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
that are deemed to be incorporated by reference therein.
2
2. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) The Registration Statement has
become effective. No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceeding for such
purpose or pursuant to Section 8A of the Securities Act
against the Company or relating to any offering has been initiated
or threatened by the Commission. The Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company.
(b) The documents incorporated by
reference in the Time of Sale Prospectus or the Prospectus, 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 Securities 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
Prospectus or any further amendment or supplement thereto, 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 Securities 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;
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 Time of Sale Prospectus or the
Prospectus;
(c) (i) The Registration
Statement, the Time of Sale Prospectus and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement, the Time of Sale Prospectus or the Prospectus relating
to the Designated Securities will conform, in all material respects
to the requirements of the Securities Act and the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”),
and the rules and regulations of the Commission thereunder;
(ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any 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; (iii) the Time of Sale Prospectus did
not, at the Time of Sale, as then amended or supplemented by the
Company, if applicable, 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; and (iv) the Prospectus,
as of its date and the Time of Delivery, as amended or
supplemented, if applicable, did not and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to
3
make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to (A) 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 Time of Sale Prospectus or the Prospectus
or (B) that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee;
(d) The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act.
Any Issuer Free Writing Prospectus (as defined in Rule 433
under the Securities Act) has been, or will be, filed with the
Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission
thereunder. Each Issuer Free Writing Prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act complies or will comply, when issued or filed
pursuant to Rule 433, in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the Issuer
Free Writing Prospectuses, if any, identified in Schedule II
to the Pricing Agreement and electronic road shows each furnished
to the Representatives before first use, the Company has not
prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus used in connection
with the offering of the Designated Securities does not conflict
with the information contained in the Registration Statement, the
Time of Sale Prospectus or the Prospectus.
(e) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Time of Sale Prospectus any material loss or interference with the
business of the Company and its subsidiaries, taken as a whole,
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Time of Sale Prospectus; and, other than as
set forth or contemplated in the Time of Sale Prospectus, since the
respective dates as of which information is given in the
Registration Statement and the Time of Sale Prospectus, there has
not been any material change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole;
(f) The Company and its subsidiaries
have (i) generally satisfactory title to all their interests
in their producing oil and gas properties and to all of their
material interests in nonproducing oil and gas properties, title
investigations having been carried out by the Company in accordance
with the general practice in the oil and gas industry, (ii) good
and indefeasible title to all other real property owned by them
that is material to the Company and its subsidiaries taken as a
whole, and (iii) good and valid title to all personal property
owned by them that is material to the Company and its subsidiaries
taken as a whole, in each case free and clear of all liens,
encumbrances, claims, security
4
interests,
subleases and defects except such as are described in the Time of
Sale Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any real property (other than oil and gas properties) and
buildings material to the Company and its subsidiaries taken as a
whole held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases (except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, preference and
other similar laws relating to or affecting creditors’ rights
generally and general principles of equity, regardless of whether
considered in a proceeding at law or in equity), with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(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 power and
authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Time of
Sale Prospectus and to enter into and perform its obligations under
this Agreement, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction; and each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of
Regulation S-X under the Securities Act, a
“Subsidiary”) has been duly incorporated or otherwise
organized and is validly existing as a corporation or other entity
in good standing under the laws of its jurisdiction of
incorporation or organization;
(h) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus, and all
of the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; and all of the outstanding shares of capital stock
or other ownership interests of each Subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares
or similar ownership and as otherwise set forth in the Time of Sale
Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(i) The Designated Securities have
been duly and validly authorized, and, when (1) the Firm
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Firm
Designated Securities and, (2) if any of the Optional
Designated Securities are issued and delivered pursuant to
Over-allotment Options (as defined in Section 3 hereof) with
respect to such Optional Designated Securities, such Designated
Securities will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, the Base
Indenture identified in the Pricing Agreement has been duly
authorized, executed and delivered by the Company
5
and duly
qualified under the Trust Indenture Act, the Supplemental Indenture
identified in the Pricing Agreement has been duly and validly
authorized and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Time of Sale Prospectus with respect to the
Designated Securities;
(j) The issue and sale of the
Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this
Agreement, any Pricing Agreement and each Overallotment Option, if
any, and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or bylaws of the
Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties, and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement, any
Pricing Agreement or any Overallotment Option, except such as have
been obtained under the Securities 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
Designated Securities by the Underwriters;
(k) Neither the Company nor any of
its subsidiaries is in violation of its charter, bylaws or other
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, other
than any such default that would not have a material adverse effect
on the financial position, stockholders’ equity, results of
operations, business or prospects of the Company and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”);
(l) The statements set forth in the
Prospectus and the Time of Sale Prospectus under the captions
“Description of Debt Securities” and “Description
of the Notes,” insofar as they purport to constitute a
summary of the terms of the Designated Securities, the Securities,
and the Indenture, respectively, and under the captions
“Underwriting” and “Plan of Distribution,”
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material
respects;
6
(m) The consolidated financial
statements of the Company, including the notes thereto, included or
incorporated by reference in the Time of Sale Prospectus present
fairly, in all material respects, the consolidated financial
position of the Company and its subsidiaries as at the dates
indicated and the results of their operations and cash flows for
the periods specified; except as otherwise stated in the Time of
Sale Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis, except in the case of unaudited financial
statements for the absence of notes thereto and subject to normal
year-end adjustments; and the selected historical financial data
for the Company included in the Time of Sale Prospectus as amended
and supplemented have been compiled on a basis consistent with that
of the audited or unaudited, as applicable, consolidated financial
statements of the Company; any pro forma financial statements or
data included or incorporated by reference in the Time of Sale
Prospectus comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the
Securities Act to the extent applicable, and the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of those statements; the other financial and
statistical data set forth or incorporated by reference in the Time
of Sale Prospectus related to the Company are accurately presented
and prepared on a basis consistent with the financial statements
and books and records of the Company, and there are no financial
statements (historical or pro forma) that are required to be
included in the Time of Sale Prospectus that are not included as
required;
(n) The Company owns or possesses
adequate rights to use the patents, patent rights, licenses,
inventions, copyrights, know-how (including seismic data, trade
secrets and other unpatented or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, “patent and
proprietary rights”) to the extent employed by it in and
material to the business now operated by it, and the Company has
not received any notice of infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding), singly or in the
aggregate, would result in a Material Adverse Effect;
(o) The Company possesses such
licenses, permits, consents, orders, certificates or authorizations
issued by the appropriate federal, state, foreign or local
regulatory agencies or bodies necessary to conduct the business now
operated by it, except for licenses, permits, consents, orders,
certificates or authorizations, the absence of which, individually
or in the aggregate, would not have a Material Adverse Effect, and
the Company has not received any notice of proceedings relating to
the revocation or modification of any such licenses, permits,
consents, orders, certificates or authorizations which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect;
(p) Other than as set forth in the
Time of Sale Prospectus, 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, except as would not have a Material
Adverse Effect; and, to the knowledge of the
7
Company, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(q) The Company carries, or is
covered by, insurance in such amounts and covering such risks as is
customary for companies engaged in similar businesses in similar
industries;
(r) Except as described in the Time
of Sale Prospectus, there has been no storage, disposal,
generation, manufacture, spill, discharge, refinement,
transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by the Company (or to the knowledge
of the Company, any of its predecessors in interest) at, upon or
from any of the property now or previously owned or leased or under
contract for purchase by the Company in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have
singularly or in the aggregate with all such violations and
remedial actions, any Material Adverse Effect; and the terms
“hazardous wastes,” “toxic wastes” and
“hazardous substances” shall have the meanings
specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection;
(s) The Company is not and, after
giving effect to the offering and sale of the Designated
Securities, will not be an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended
(the “Investment Company Act”);
(t) The Company maintains disclosure
controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act), which (i) are
designed to ensure that material information relating to the
Company, including its subsidiaries, is made known to the principal
executive officer and the principal financial officer of the
Company by others within the Company, particularly during the
periods in which the periodic reports required under the Exchange
Act are being prepared, and (ii) have been evaluated for
effectiveness as of a date within 90 days prior to the filing
date of each report requiring certification under Rule 13a-14
under the Exchange Act filed with the Commission;
(u) The Company maintains systems of
“internal control over financial reporting” (as defined
in Rule 13a-15(f) under the Exchange Act) that have been
designed by, or under the supervision of, the Company’s
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. The
Company’s internal control over financial reporting includes
those policies and procedures that: (i) pertain to the maintenance
of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the Company’s
assets; (ii) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of the
Company’s financial statements in accordance with generally
accepted accounting principles, and that the Company’s
receipts and
8
expenditures
are being made only in accordance with authorizations of the
Company’s management and directors; and (iii) provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of the Company’s
assets that could have a material effect on the Company’s
financial statements. Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there
are no material weaknesses in the Company’s internal control
over financial reporting;
(v) Based on its evaluation of its
disclosure controls and procedures as of March 31, 2008, the
Company’s disclosure controls and procedures were effective
as of such date in ensuring that material information was
accumulated and communicated to management, and made known on a
timely basis to allow disclosure as required;
(w) Since the date of the
Company’s most recent evaluation of its internal control over
financial reporting, there have been no changes that have
materially affected, or are reasonably likely to materially affect,
the Company’s internal control over financial reporting or in
other factors that have materially affected or are reasonably
likely to materially affect the Company’s internal control
over financial reporting, including any corrective actions with
regard to significant deficiencies and material weaknesses;
(x) The Audit Committee of the
Company’s Board of Directors complies with the applicable and
currently effective requirements of the New York Stock Exchange and
the Commission; and
(y) PricewaterhouseCoopers LLP, who
have audited certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm
as required by the Securities Act and the rules and regulations of
the Commission thereunder and the rules and regulations of the
Public Company Accounting Oversight Board (the
“PCAOB”).
3. Upon the execution of the
Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of the Firm
Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and
conditions set forth in the Prospectus.
The Company may specify in the
Pricing Agreement applicable to any Designated Securities that the
Company thereby grants to the Underwriters the right (an
“Overallotment Option”) to purchase at their election
up to the principal amount of Optional Designated Securities set
forth in such Pricing Agreement, on the terms set forth in the
paragraph above, for the sole purpose of covering sales of
Designated Securities in excess of the Firm Designated Securities.
Any such election to purchase Optional Designated Securities may be
exercised by written notice from the Representatives to the
Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate principal amount of Optional Designated
Securities to be purchased and the date on which such Optional
Designated Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Company
9
otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The principal amount of Optional
Designated Securities to be added to the principal amount of Firm
Designated Securities to be purchased by each Underwriter as set
forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the principal
amount of Optional Designated Securities which the Company has been
advised by the Representatives have been attributed to such
Underwriter; provided that, if the Company has not been so advised,
the principal amount of Optional Designated Securities to be so
added shall be, in each case, that proportion of Optional
Designated Securities which the principal amount of Firm Designated
Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate principal amount of Firm
Designated Securities (rounded as the Representatives may determine
to the nearest 1,000 dollars). The total principal amount of
Designated Securities to be purchased by all the Underwriters
pursuant to such Pricing Agreement shall be the aggregate principal
amount of Firm Designated Securities set forth in Schedule I
to such Pricing Agreement plus the aggregate principal amount of
Optional Designated Securities which the Underwriters elect to
purchase.
4. Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such 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
the Underwriters, against payment by the Underwriters or on their
behalf of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance as specified
in such Pricing Agreement, (i) with respect to the Firm
Designated Securities, all in the manner and 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
“First Time of Delivery,” and (ii) with respect to
the Optional Designated Securities, if any, in the manner and at
the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters’
election to purchase such Optional Designated Securities, or at
such other time and date as the Representatives and the Company may
agree upon in writing, such time and date, if not the First Time of
Delivery, being herein called the “Second Time of
Delivery.” Each such time and date for delivery is herein
called a “Time of Delivery.”
5. 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 Securities 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); to make no further amendment or any supplement to
the Registration Statement, Prospectus or Time of Sale Prospectus
after the date of the Pricing Agreement or any Issuer Free Writing
Prospectus relating to such Designated Securities and prior to any
Time of Delivery for such
10
Designated
Securities which shall be disapproved by the Representatives for
such Designated Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such
amendment or supplement or any Issuer Free Writing Prospectus after
any Time of Delivery for such Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with
the offering or sale of such Designated Securities, and during such
same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to such Designated Securities, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or pursuant to
Section 8A of the Securities Act, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information or of the
receipt by the Company of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to such Designated Securities or suspending any
such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) (i) To prepare a final term
sheet, containing solely a description of final terms of the
Designated Securities and the offering thereof, in the form
approved by the Representatives, and to file such term sheet
pursuant to Rule 433 under the Securities Act within the time
required by such rule; (ii) not to make any offer relating to
the Designated Securities that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Representatives; and (iii) to retain in accordance with the
Securities Act all Issuer Free Writing Prospectuses not required to
be filed with the Commission.
(c) If the Time of Sale Prospectus is
being used to solicit offers to buy the Designated Securities at a
time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if
any event shall occur or condition exist as a result of which the
Time of Sale Prospectus conflicts with the information contained in
the Registration Statement then on file, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so amended or
11
supplemented
will not, in the light of the circumstances when delivered to a
prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict
with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law;
(d) If, during such period after the
first date of the public offering of the Designated Securities as
in the opinion of counsel for the Underwriters the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities
Act) is delivered to a purchaser, not misleading, or if, in the
opini
|
