|
COCA-COLA ENTERPRISES INC.
(a Delaware corporation)
Senior Debt Securities,
Debt Warrants
and
Currency Warrants
UNDERWRITING AGREEMENT
[ ],
2008
To
the Underwriters
named
in the applicable
Terms
Agreement
supplemental
hereto
Ladies
and Gentlemen:
In
accordance with the authorization granted by the Board of
Directors, or a committee thereof, of Coca-Cola Enterprises
Inc. (the “Company”), the Company proposes to sell
from time to time, pursuant to the joint registration
statement filed by the Company and its wholly owned
subsidiary, Coca-Cola Enterprises Finance LT 1 Commandite
S.C.A. (“CCE Luxembourg”), on Form S-3 (No.
333-144967), an indeterminate aggregate principal amount, in
domestic or such foreign currencies or units of two or more
currencies as the Company shall designate at the time of
offering, of its (a) senior debt securities (the “Senior
Debt Securities”) and/or (b) warrants to purchase Senior
Debt Securities (“Debt Warrants”) and/or (c)
warrants to receive from the Company the cash value in
U.S. dollars of the right to purchase
(“Currency Call Warrants”) and/or to receive from
the Company the cash value in U.S. dollars of the
right to sell (“Currency Put Warrants” and,
together with the Currency Call Warrants, the “Currency
Warrants”) such foreign currencies or units of two or
more currencies as shall be designated by the Company at the
time of offering in one or more offerings on terms determined
at the time of sale. The Senior Debt Securities
will be issued under an Indenture dated as of July 30, 2007
(the “Original Indenture”), as supplemented by the
Supplemental Indenture to be dated as of May 12, 2008 (the
“Supplemental Indenture” and, collectively with
the Original Indenture, the “Indenture”) between
the Company, and Deutsche Bank Trust Company Americas, as
trustee (the “Trustee”). The Debt
Warrants and/or Currency Warrants (together, the
“Warrants”) will be issued under one or more
warrant agreements (the warrant agreement relating to any
issue of Warrants to be sold pursuant to this Agreement will
be identified in the applicable Terms Agreement (as
hereinafter defined) and is referred to herein as the
“Warrant Agreement”) among the Company and the
Warrant Agent identified in such Warrant Agreement (the
“Warrant Agent”). Each issue of Senior
Debt Securities and Warrants may vary, where applicable, as to
aggregate principal amount, maturity, interest rate or rates
and timing of payments thereof, redemption provisions and
sinking fund requirements, if any, exercise provisions and any
other variable terms which the Indenture or any Warrant
Agreement, as the case may be, contemplates may be set forth
in the Debt Securities and Warrants as issued from time to
time. The Senior Debt Securities and the Warrants
may be offered either together or separately. As
used herein, “Securities” shall mean
the
securities (whether Senior Debt Securities, Warrants or both)
covered by the applicable Terms Agreement, and “Warrant
Securities” shall mean the Senior Debt Securities
issuable upon exercise of Debt Warrants.
Whenever
the Company determines to make an offering of Securities
through one or more investment banking firms, it will enter
into a Terms Agreement (a “Terms Agreement”) with
such firm or firms providing for the sale of such Securities
to, and the purchase and offering thereof by, such firm or
firms. The Terms Agreement shall be substantially
in the form of Exhibit A hereto and shall specify such
applicable information as is indicated in such
Exhibit. The Terms Agreement will incorporate by
reference the provisions of this Agreement. Each
offering of Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit
of and be binding upon each Underwriter participating in the
offering of such Securities. Unless the context
otherwise requires, as used hereinafter (a) the term
“Agreement” shall refer to this Underwriting
Agreement which has been executed by the Company as of
[ ],
2008 and to the Terms Agreement supplemental hereto with
respect to the offering of specific Securities as executed by
or on behalf of the Company and by or on behalf of the
Underwriter or Underwriters which are parties thereto; (b) the
term “Terms Agreement” shall refer to the Terms
Agreement applicable to a specific offering; (c) the term
“Underwriter” or “Underwriters” shall
each refer to the one or more investment banking firms which
are parties to the applicable Terms Agreement; and (d)
“you” or “your” shall refer to any
manager or co-managers of an underwriting syndicate so
specified in the applicable Terms Agreement on its own behalf
and on behalf of the other Underwriters, or, if none is or are
so named, to the Underwriter or Underwriters.
SECTION 1. Representations
and Warranties . The Company represents and
warrants to each Underwriter, as of the date of the Terms
Agreement, as of the Applicable Time referred to in Section 1(e)
hereof and as of the Closing Time referred to in Section 2 hereof
(each, a “Representation Date”), as
follows:
(a)
The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “1933 Act”),
and the Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) an
“automatic shelf registration statement” as defined in
Rule 405 under the 1933 Act on Form S-3 (No. 333-144967)
not earlier than three years prior to the date hereof in respect of
the Securities, such registration statement relating to the
Securities and the offering thereof from time to time by the
Company or CCE Luxembourg in accordance with Rule 415 under the
1933 Act, and has filed such amendments thereto as may have been
required to the date hereof. Such registration statement
and any amendment thereto became effective under the 1933 Act upon
filing with the Commission pursuant to Rule 462(e) under the 1933
Act, and the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the “1939
Act”). Such registration statement and the
exhibits thereto (and, if amended, as amended) and the base
prospectuses relating to the sale of Securities by the Company or
CCE Luxembourg constituting a part thereof, including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the “1934 Act”), the 1933 Act or otherwise,
are collectively referred to herein as the “Registration
Statement” and the “Base Prospectus”,
respectively. The Company has not received from
the
Commission
any notice pursuant to Rule 401(g)(2) under the 1933 Act
objecting to the use of the automatic shelf registration
statement form. No stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request
on the part of the Commission for additional information has
been complied with. The Company may have filed with
the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b) under the 1933 Act, one
or more preliminary prospectus supplements (including the
documents incorporated or deemed to be incorporated by
reference therein, a “Preliminary Prospectus”)
relating to the Securities, each of which has been previously
furnished to you. The Company will file with the
Commission a final prospectus supplement (including the
documents incorporated or deemed to be incorporated by
reference therein, the “Final Prospectus
Supplement”) relating to the Securities in accordance
with Rule 424(b), and as contemplated by Section 3(a)
hereof. As filed, such Final Prospectus Supplement
shall be deemed to have supplemented the Base Prospectus only
with respect to the offering of Securities to which it
relates. Such Final Prospectus Supplement shall
contain all information required by the 1933 Act and the rules
thereunder, and, except to the extent you shall agree in
writing to a modification, shall be in all substantive
respects in the form furnished to you at or prior to the date
of the applicable Terms Agreement, shall contain only such
specific additional information and other changes (beyond that
contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, at or prior to the
date of the applicable Terms Agreement, will be included or
made therein.
(b)
The
Registration Statement, the Base Prospectus and the Indenture, at
the time the Registration Statement became effective and as of each
Representation Date did or will, and, when the Final Prospectus
Supplement is first filed in accordance with Rule 424(b) and at the
Closing Time, the Final Prospectus Supplement (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the 1933 Act, the rules and regulations thereunder
(the “Regulations”) and the 1939 Act. The
Registration Statement, at the time the Registration Statement
became effective and as of each Representation Date, did not, and
will not, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not
misleading. The Base Prospectus, at the time the
Registration Statement became effective and as of each
Representation Date, did not, and will not, include 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; and
on the date of any filing pursuant to Rule 424(b) and at the
Closing Time, the Final Prospectus Supplement (together with any
supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided ,
however , that
the Company makes no representations and warranties as to
information contained in or omitted from the Registration
Statement, Base Prospectus or Final Prospectus Supplement (or any
supplement thereto) made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement, Base
Prospectus or Final Prospectus
Supplement
or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification
under the 1939 Act (Form T-1) of the Trustee under the
Indenture.
(c)
This
Agreement has been duly authorized, executed and delivered by the
Company.
(d)
The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus and Final Prospectus Supplement, at the time they were
or hereafter are filed with the Commission, complied or when so
filed will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations thereunder and, when
read together with the other information in the Base Prospectus, at
the time the Registration Statement and any amendments thereto
became or become effective, did not 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, in the light of the circumstances under which they are
made, not misleading.
(e)
With
respect to any issue of Securities, the “Applicable
Time” will be such time and date as is specified in the
related Terms Agreement as the Applicable Time; and the
“Disclosure Package” will be (i) The Base Prospectus as
amended or supplemented immediately prior to the Applicable Time,
(ii) the Preliminary Prospectus used most recently prior to the
Applicable Time (iii) issuer free writing prospectuses, as defined
in Rule 433 under the 1933 Act (“Issuer Free Writing
Prospectus”), if any, identified in Schedule I to the Terms
Agreement, (iv) the final term sheet prepared and filed pursuant to
Section 3(b) hereto, if any, and (v) any other free writing
prospectus, as defined in Rule 405 under the 1933 Act (“Free
Writing Prospectus”), that the parties to the Terms Agreement
shall expressly agree in writing, as identified in Schedule I to
the Terms Agreement, to treat as part of the Disclosure Package;
the Disclosure Package and each electronic road show, when taken
together as a whole with the Disclosure Package, as of the
Applicable Time, does not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through you specifically for use therein.
(f)
(i)
At the time of the most recent amendment to the Registration
Statement 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 Section 13 or
15(d) of the Exchange Act or form of prospectus), (ii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the 1933 Act) made any
offer relating to the Securities in reliance on the exemption in
Rule 163 under the 1933 Act, and (iii) at the Applicable Time (with
such time being used as the determination date for purposes of this
clause (iii)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule 405
under the 1933 Act.
(g)
The
Company was not, at the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the 1933 Act), and is
not an “ineligible issuer” (as defined in Rule 405
under the 1933 Act).
(h)
Each
Issuer Free Writing Prospectus and the final term sheet prepared
and filed pursuant to Section 3(b) hereto does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 6 hereof.
(i)
With
respect to an issuance of Securities, the Company has not made and
will not make, prior to the Closing Time for such Securities and
the completion of the Underwriters’ distribution of such
Securities, any offer that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Act), without
the prior consent of the Underwriters; and the Company has complied
and will comply with the requirements of Rule 433 under the Act
applicable to any such free writing prospectus, including timely
filing with the Commission or retention where required and
legending.
(j)
The
Company maintains a consolidated system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by, or under the supervision of,
the Company’s principal executive officer and principal
financial officer 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
(“GAAP”). Except as disclosed in the
Disclosure Package, the Company’s internal control over
financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial
reporting.
(k)
The
Company has established and maintains “disclosure controls
and procedures” (as defined in Rules 13a-15(e) and 15d-15(e)
under the 1934 Act) that are designed to ensure that information
(both financial and non-financial) required to be disclosed by the
Company in reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported within the time
periods specified in the rules and regulations of the Commission,
and that all such information required to be disclosed is
accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure
and to make the certifications of the Chief Executive Officer and
Chief Financial Officer of the Company required under the Exchange
Act with respect to such reports.
(l)
The
financial statements included or incorporated or deemed to be
incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus Supplement, together
with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, shareowners’
equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements
have been prepared in conformity with GAAP applied on a consistent
basis throughout the periods involved. The supporting
schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data and the summary financial information included or
incorporated or deemed to be incorporated by reference in the Final
Prospectus Supplement present fairly the information shown therein
and have been compiled on a basis consistent with that of the
audited financial statements included or incorporated or deemed to
be incorporated by reference in the Registration
Statement. All disclosures contained in the Registration
Statement, the Disclosure Package or the Final Prospectus
Supplement, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under the
1934 Act and Item 10 of Regulation S-K of the Regulations, to the
extent applicable.
(m)
The
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Final Prospectus Supplement and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a 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 business (a “Material
Adverse Effect”).
(n)
The
Securities have been duly authorized and, at the Closing Time, will
have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture. The Indenture has been duly qualified
under the 1939 Act and has been duly authorized by the Company and,
at the Closing Time, will constitute a valid and legally binding
agreement, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all
laws
relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(o)
The
Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the
Final Prospectus Supplement and will be in substantially the
respective forms filed or incorporated or deemed to be incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(p)
Neither
the Company nor any of its significant subsidiaries (as defined in
Rule 1-02 of Regulation S-X promulgated under the 1933 Act)
(“Significant Subsidiaries”) is in violation of its
charter or by-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries 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 subsidiary is subject
(collectively, “Agreements and Instruments”) except for
such defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement by
the Company, the Indenture and the Securities and the consummation
of the transactions contemplated herein and compliance by the
Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the charter or bylaws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiary or any of their assets, properties or
operations. As used herein, a “Repayment
Event” means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(q)
The
Company and its Significant Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know how (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to
carry on the business now operated by them, except where the
failure to own or possess such right would not, singly or in the
aggregate, have a Material Adverse Effect, and neither the Company
nor any of its subsidiaries has received any notice or
is
otherwise
aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the
Company or any of its Significant Subsidiaries therein, and
which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(r)
No
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or as may be required
under the 1933 Act or the Regulations or state securities laws and
except for the qualification of the Indenture under the 1939
Act.
(s)
The
Company and its Significant Subsidiaries possess such permits,
licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure so to possess would not, singly or in the
aggregate, result in a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(t)
Neither
the Company nor any of its Significant Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Significant 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
Significant Subsidiaries and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintained policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(u)
The
operations of the Company and its Significant Subsidiaries are and
have been conducted at all times in 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
Significant Subsidiaries with respect to the Money Laundering Laws
is pending or, to the best knowledge of the Company,
threatened.
(v)
Neither
the Company nor any of its Significant 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.
(w)
The
Company is not and, after giving effect to the offering and sale of
the Securities and the application of the net proceeds thereof as
described in the Disclosure Package and the Final Prospectus
Supplement, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended (the
“1940 Act”).
Any
certificate signed by any officer of the Company and delivered
to you or counsel for the Underwriters in connection with an
offering of Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby on the date of such certificate.
SECTION 2. Purchase and Sale
. The several commitments of the Underwriters to
purchase Securities pursuant to the Terms Agreement shall be deemed
to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and
conditions herein set forth.
Payment
of the purchase price for, and delivery of, any Securities to
be purchased by the Underwriters shall be made at such place
as shall be set forth in the Terms Agreement (which, in the
case of Securities in bearer form, shall be at a place located
outside of the United States), at 10:00 A.M., New York City
time, on the third business day (unless postponed in
accordance with the provisions of Section 9) following the
date of the Terms Agreement or such other time as shall be
agreed upon by you and the Company (such time and date being
referred to as the “Closing
Time”). Payment shall be made to the Company
by wire transfer in immediately available funds to the order
of the Company against delivery to you for the respective
accounts of the Underwriters of the Securities to be purchased
by them (unless such Securities are issuable only in the form
of a single global Security registered in the name of a
depository or a nominee of a depository, in which event the
Underwriters’ interest in such global certificate shall
be noted in a manner satisfactory to the Underwriters and
their counsel). Such Securities shall be in such
denominations and registered in such names as you may request
in writing at least two business
days
prior to the Closing Time. Such Securities, which
may be in temporary form, will be made available for
examination and packaging by you on or before the first
business day prior to the Closing Time.
If
authorized by the Terms Agreement, the Underwriters may
solicit offers to purchase Senior Debt Securities from the
Company pursuant to delayed delivery contracts (“Delayed
Delivery Contracts”) substantially in the form of
Exhibit B hereto with such changes therein as the Company may
approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing
Time, for the accounts of the Underwriters, a fee relating to
the principal amount of Senior Debt Securities for which
Delayed Delivery Contracts are made at Closing Time as is
specified in the Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and
charitable institutions. At Closing Time the
Company will enter into Delayed Delivery Contracts (for not
less than the minimum principal amount of Senior Debt
Securities per Delayed Delivery Contract specified in the
Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as
provided below, but not for an aggregate principal amount of
Senior Debt Securities in excess of that specified in the
Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed
Delivery Contracts.
You
are to submit to the Company, at least two business days prior
to Closing Time, the name of any institutional investors with
which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Senior Debt
Securities to be purchased by each of them, and the Company
will advise you, at least two business days prior to Closing
Time, of the names of the institutions with which the making
of Delayed Delivery Contracts is approved by the Company and
the principal amount of Senior Debt Securities to be covered
by each such Delayed Delivery Contact.
The
principal amount of Senior Debt Securities agreed to be
purchased by the respective Underwriters pursuant to the Terms
Agreement shall be reduced by the principal amount of Senior
Debt Securities covered by Delayed Delivery Contracts, as to
each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total
principal amount of Senior Debt Securities to be purchased by
all Underwriters shall be the total amount of Senior Debt
Securities covered by the Terms Agreement, less the principal
amount of Senior Debt Securities covered by Delayed Delivery
Contracts.
SECTION 3. Covenants of the
Company . The Company covenants with each
Underwriter as follows:
(a)
Immediately
following the execution of the Terms Agreement, the Company will
prepare a Final Prospectus Supplement setting forth the principal
amount of Senior Debt Securities and/or the number of Warrants
covered thereby and their terms not otherwise specified in the
Indenture or Warrant Agreement, as the case may be, the names of
the Underwriters participating in the offering and the principal
amount of Senior Debt Securities and/or number of Warrants which
each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering,
if any, the price at which the Securities are to be purchased by
the Underwriters
from
the Company, the initial public offering price, the selling
concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of
the Securities. The Company will promptly transmit
copies of the Final Prospectus Supplement to the Commission
for filing pursuant to Rule 424(b) of the Regulations, and
will furnish to the Underwriters as many copies of the Base
Prospectus and such Final Prospectus Supplement as you shall
reasonably request.
(b)
The
Company shall prepare a final term sheet, containing solely a
description of final terms of the Securities and the offering
thereof, in the form approved by the Underwriters and attached as
Schedule II to the Terms Agreement and to file such term sheet
pursuant to Rule 433 of the 1933 Act within the time required by
such Rule.
(c)
If,
at any time prior to the filing of the Final Prospectus Supplement
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package as of the Applicable Time would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made or the circumstances then
prevailing not misleading, the Company will (i) notify promptly the
Underwriters so that any use of the Disclosure Package may cease
until it is amended or supplemented; (ii) amend or supplement the
Disclosure Package to correct such statement or omission; and (iii)
supply any amendment or supplement to you in such quantities as you
may reasonably request.
(d)
If
at any time when a prospectus is required by the 1933 Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172 of the 1933 Act) to be delivered in connection
with sales of the Securities, any event shall occur or condition
exist as a result of which it is necessary, in the view of your
counsel or counsel for the Company, to further amend or supplement
the Final Prospectus Supplement in order that the Final Prospectus
Supplement as then supplemented will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the
light of circumstances existing at the time it is delivered to a
purchaser or if it shall be necessary, in the view of either such
counsel, at any such time to amend or supplement the Registration
Statement, file a new registration statement or supplement the
Final Prospectus Supplement in order to comply with the
requirements of the 1933 Act or the Regulations, including in
connection with use or delivery of the Final Prospectus Supplement,
the Company will (i) promptly prepare and file with the Commission
such amendment or supplement or new registration statement, whether
by filing documents pursuant to the 1934 Act or otherwise, as may
be necessary to correct such untrue statement or omission or to
make the Registration Statement comply with such requirements and
(ii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon
as practicable in order to avoid any disruption in use of the Final
Prospectus Supplement.
(e)
With
respect to each sale of Securities, the Company will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
earnings statements (in form complying with the
provisions
of Rule 158 under the 1933 Act) (other than any such earnings
statement available via the Commission’s EDGAR
database).
(f)
The
Company, during the period when a prospectus is required to be
delivered under the 1933 Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), will give you
notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Final Prospectus
Supplement, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable
time in advance of filing to afford you a reasonable opportunity to
comment on such proposed amendment or supplement, and will not file
any such amendment or supplement or other documents in a form to
which you or your counsel shall reasonably object.
(g)
The
Company, during the period when a prospectus is required to be
delivered under the 1933 Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), will notify
each of you immediately, and confirm the notice in writing, (i) of
the mailing or the delivery to the Commission for filing of any
supplement to the Final Prospectus Supplement or any document to be
filed pursuant to the 1934 Act, (ii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Base Prospectus or the Final Prospectus Supplement, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any supplement to the Final Prospectus Supplement or
for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the
initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance
of any stop order or the occurrence of any objection to the use of
the Registration Statement and, upon such issuance or notice of
objection, to obtain at the earliest possible moment the lifting of
such stop order or relief from such objection, including, if
necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as
soon as practicable.
(h)
The
Company will deliver to you one signed and as many conformed copies
of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits thereto), and as many copies
of each Preliminary Prospectus, the Final Prospectus Supplement and
each Issuer Free Writing Prospectus and any supplement thereto as
you may reasonably request and will also deliver to you a conformed
copy of the Registration Statement and each amendment thereto for
each of the Underwriters.
(i) &
|
