Great Plains Energy
Incorporated
10,000,000 Shares of Common
Stock
(no par value)
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
GOLDMAN, SACHS
& CO.
J.P. MORGAN SECURITIES INC.
As Representatives of the several
Underwriters
c/o Goldman,
Sachs & Co.
85 Broad Street
New York, New York 10004
c/o J.P. Morgan
Securities Inc.
270 Park Avenue
New York, New York 10017
Great Plains
Energy Incorporated, a Missouri corporation (the “
Company ”), confirms its agreement with each of the
underwriters named in Schedule A (the “
Underwriters ”), subject to the terms and conditions
stated herein, with respect to the issue and sale by the Company
and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of shares of common stock, no
par value, of the Company (“ Common Stock ”) set
forth opposite their names in Schedule A (the “
Initial Securities ”), and with respect to the grant
by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase
all or any part of additional shares of Common Stock to cover sales
of shares in excess of the number of Initial Securities, if any
(the “ Option Securities ,” and, together with
the Initial Securities, the “ Securities ”).
Goldman, Sachs & Co. and J.P. Morgan Securities Inc. have
agreed to act as representatives of the several Underwriters (in
such capacity, the “ Representatives ”) in
connection with the offering and sale of the Securities.
The Company is
concurrently publicly offering equity units (“ Equity
Units ”) consisting of a contract to purchase shares of
Common Stock and an unsecured debt obligation of the Company (the
“ Equity Units Offering ”) through the
Representatives and any other underwriters. The offering of the
Securities is not contingent upon completion of the Equity Units
Offering; the Equity Units Offering is not contingent upon the
completion of the offering of the Securities; and the Equity Units
are not being offered together with the Securities.
The Company has
prepared and filed with the Securities and Exchange Commission (the
“ Commission ”) a registration statement on Form
S-3 (File No. 333-159131), to be used in connection with,
among other securities, the public offering and sale of Common
Stock,
including the
Securities. Such registration statement, including the financial
statements, exhibits and schedules thereto, in the form in which it
became effective under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (collectively, the
“ Securities Act ”), including any required
information deemed to be a part of the registration statement at
the time of effectiveness pursuant to Rule 430B under the
Securities Act, is called the “ Registration Statement
”. The term “ Base Prospectus ” shall mean
the base prospectus dated May 11, 2009 relating to the Securities.
The term “ Preliminary Prospectus ” shall mean
any preliminary prospectus supplement relating to the Securities,
together with the Base Prospectus, that is first filed with the
Commission pursuant to Rule 424(b). The term “
Prospectus ” shall mean the final prospectus
supplement relating to the Securities, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) after the
date and time that this Agreement is executed (the “
Execution Time ”) and delivered by the parties hereto.
Any reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents that are or are deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 5:30 p.m. (Eastern time) on May 12,
2009 (the “ Initial Sale Time ”). All references
in this Agreement to the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendments or supplements to any
of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“ EDGAR ”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, the Prospectus or
any Preliminary Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Prospectus or any Preliminary Prospectus, as the
case may be, prior to the Initial Sale Time; and all references in
this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or any Preliminary Prospectus shall be
deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “ Exchange
Act ”), which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or any
Preliminary Prospectus, as the case may be, after the Initial Sale
Time.
The Company hereby
confirms its agreements with the Underwriters as
follows:
SECTION 1. Representations and
Warranties of the Company .
The Company hereby
represents, warrants and covenants to each Underwriter as of the
date hereof, as of the Initial Sale Time, as of the Closing Date
(as defined herein) and as of each Date of Delivery (if any) (as
defined herein) (in each case, a “ Representation Date
”), as follows:
(a)
Well-Known Seasoned Issuer . (i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning,
2
for this clause
only, of Rule 163(c) of the Securities Act) made any offer relating
to the Securities in reliance on the exemption of Rule 163 of
the Securities Act, and (iv) as of the Execution Time (with
such date being used as the determination date for purposes of this
clause (iv)), the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the Securities Act.
The Registration Statement is an “automatic shelf
registration statement”, as defined in Rule 405 of the
Securities Act, the Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act
objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration statement form.
(b)
Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities
Act on May 11, 2009 and no stop order suspending the
effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated or threatened by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
At the respective
times the Registration Statement and any post-effective amendments
thereto became effective and at each Representation Date, the
Registration Statement and any amendments thereto (i) complied
and will comply in all material respects with the requirements of
the Securities Act, and (ii) 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 not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Date
(and, if any Option Securities are purchased, at each Date of
Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of
Eligibility on Form T-1 of the Trustee under the Trust Indenture
Act or (ii) statements in or omissions from the Registration
Statement or any post-effective amendment or the Prospectus or any
amendments or supplements thereto made in reliance upon and in
conformity with information furnished to the Company in writing by
any of the Underwriters through the Representatives expressly for
use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
Each Preliminary
Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities
Act and each Preliminary Prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering of the
Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(c)
Disclosure Package. The term “ Disclosure
Package ” shall mean (i) the Preliminary Prospectus
dated May 11, 2009, (ii) each Issuer Free Writing
Prospectus (as defined
3
below), if any,
identified in Annex I hereto (each, an “ Issuer General
Use Free Writing Prospectus ”) and (iii) any other
free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package. The term “ Issuer Free Writing Prospectus
” means any “issuer free writing prospectus,” as
defined in Rule 433 of the Securities Act
(“Rule 433”), relating to the Securities that
(i) is required to be filed with the Commission by the Company
or (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission, in each
case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g). The term
“ Issuer Limited Use Free Writing Prospectus ”
means any Issuer Free Writing Prospectus that is not an Issuer
General Use Free Writing Prospectus. At the Initial Sale Time,
neither (x) the Disclosure Package nor (y) any individual
Issuer Limited Use Free Writing Prospectus, when considered with
the Disclosure Package, included any untrue statement of a material
fact or omitted 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 or Issuer Limited Use Free Writing Prospectus based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 7(b)
hereof.
(d)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, any Preliminary Prospectus and the Prospectus
(i) at the time they were or hereafter are filed with the
Commission, complied or will comply in all material respects with
the requirements of the Exchange Act and (ii) when read
together with the other information in the Disclosure Package, at
the Initial Sale Time, and when read together with the other
information in the Prospectus, at the date of the Prospectus and at
the Closing Date (and, if any Option Securities are purchased, at
each Date of Delivery), did not or 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.
(e) Not
an Ineligible Issuer . (i) At the earliest time after the
filing of the Registration Statement that the Company or another
offering participant makes a bona fide offer (within the
meaning of Rule 164(h)(2) of the Securities Act) of the
Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not or is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act), without taking
account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that
the Company be considered an Ineligible Issuer.
(f)
Issuer Free Writing Prospectuses . Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offering and sale of
Securities or until any earlier date that the Company notified or
notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, any Preliminary Prospectus or the
Prospectus. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development
as a result of which such
4
Issuer Free
Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do 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 through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 7(b) hereof.
(g) No
Applicable Registration or Other Similar Rights. Except as
described in the Disclosure Package and the Prospectus, there are
no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly
waived.
(h) Due
Incorporation and Qualification . The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the state of Missouri with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the
Prospectus 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
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not result in a Material Adverse Change (as defined
herein).
(i)
Subsidiaries . Each “significant subsidiary” (as
such term is defined in Rule 1-02 of Regulation S-X) of
the Company (each, a “ Subsidiary ” and
together, the “ Subsidiaries ”) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Change; except as
otherwise disclosed in the Disclosure Package and the Prospectus,
all of the issued and outstanding shares of capital stock owned
directly or indirectly by the Company of each such Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such Subsidiary. The Company has no significant subsidiaries
other than Kansas City Power & Light Company and KCP&L
Greater Missouri Operations Company.
(j)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure
Package and the Prospectus in the column entitled
5
“Actual” under the caption
“Capitalization and Short-Term Debt.” The shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(k)
Accountants . Each firm of accountants who issued their
reports on the financial statements of the Company included or
incorporated by reference in the Disclosure Package and the
Prospectus is an independent registered public accounting firm
within the meaning of the Securities Act.
(l)
Financial Statements . The historical financial statements
and any supporting schedules of the Company included or
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus (in each case, other than pro
forma financial information) present fairly, in all material
respects, the financial position of the Company as of the dates
indicated and the results of its operations and cash flows for the
periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States (“ GAAP
”) applied on a consistent basis; and any such supporting
schedules included in the Registration Statement present fairly, in
all material respects, the information required to be stated
therein. The selected financial data and the summary financial
information included or incorporated by reference in the Disclosure
Package and the Prospectus (in each case, other than pro forma
financial information) present fairly, in accordance with GAAP, the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
or incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus. The historical pro forma
financial statements of the Company included or incorporated by
reference in the Registration Statement have been prepared in
accordance with the applicable requirements of the Securities Act
and the Exchange Act, as applicable. The assumptions used in
preparing the pro forma financial statements included or
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein; the related pro forma
adjustments give appropriate effect to those assumptions in all
material respects; and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts in all material
respects.
(m)
Authorization of the Underwriting Agreement . This Agreement
has been duly authorized, executed and delivered by the
Company.
(n)
Accurate Tax Disclosure . The factual statements set forth
in the Disclosure Package and the Prospectus under the caption
“Material U.S. Federal Income Tax Considerations to Non-U.S.
Holders” are accurate in all material respects and fairly
present the information provided.
(o)
Authorization and Description of the Securities . The
Initial Securities and the Option Securities have been duly and
validly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the purchase
price therefor, will be duly and
6
validly issued,
fully paid and non-assessable and will conform in all material
respects to the description thereof contained in the Disclosure
Package and the Prospectus and to the instruments defining the
same; and the issuance of the Securities will not be subject to any
preemptive or similar rights of any securityholder of the Company.
No holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(p)
Material Changes or Material Transactions . Since the
respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus,
except as may otherwise be stated therein or contemplated thereby,
(a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “ Material Adverse
Change ”) and (b) there have been no transactions
entered into by the Company and its subsidiaries considered as one
enterprise other than those in the ordinary course of business
which are material with respect to the Company and its subsidiaries
considered as one enterprise.
(q) No
Defaults . Neither the Company nor any of the Subsidiaries is
in violation of its articles of incorporation, charter or by-laws.
Except as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change, neither the
Company nor any of the Subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of the 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 of the Subsidiaries is subject (each, an “
Agreement or Instrument ” and, collectively, the
“ Agreements and Instruments ”). The execution
and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all
necessary corporate action and do not and will not conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to, any
material Agreements and Instruments, nor will such action result in
any violation of the provisions of the Articles of Incorporation,
charter or by-laws of the Company or any of the Subsidiaries or any
applicable law, administrative regulation or administrative or
court order or decree.
(r)
Regulatory Approvals . The Company has made all necessary
filings and obtained all necessary consents, orders or approvals in
connection with the issuance and sale of the Securities or will
have done so by the time the Securities shall be issued and sold,
and no consent, approval, authorization, order or decree of any
other court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under state
securities laws.
(s) Legal
Proceedings; Contracts . Except as may be set forth,
incorporated or deemed incorporated by reference in the Disclosure
Package and the Prospectus, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or its subsidiaries
which would reasonably be expected to result in any Material
Adverse Change, or might materially and adversely affect its
properties or assets or would
7
reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated by this Agreement; and there are no
contracts or documents which are required to be filed as exhibits
to the Registration Statement by the Securities Act which have not
been so filed.
(t)
Franchises . The Company and the Subsidiaries hold, to the
extent required, valid and subsisting franchises, licenses and
permits authorizing them to carry on the regulated utility
businesses in which they are engaged in the territories from which
substantially all of the Company’s consolidated gross
operating revenue is derived, except where the failure to hold such
franchises, licenses and permits would not result in a Material
Adverse Change.
(u)
Environmental Laws . Except as described, incorporated or
deemed incorporated by reference in the Disclosure Package and the
Prospectus, and except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Change, (A) neither the Company nor any of the 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, asbestos-containing materials or
mold (collectively, “ Hazardous Materials ”) or
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “ Environmental Laws ”),
(B) the Company and the Subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of the
Subsidiaries and (D) there are no events or circumstances that
would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of the Subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(v)
Investment Company Act . The Company is not and, upon the
issuance and sale of the Securities as contemplated herein and the
application of the net proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be, required to
register as an “investment company” under the
Investment Company Act of 1940, as amended.
(w)
ERISA . The Company and the Subsidiaries are in compliance
in all material respects with all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
Company or any of the Subsidiaries would have any material
liability; the Company and the Subsidiaries have not incurred and
do not expect to incur any material liability under (i) Title
IV of ERISA with respect to the termination
8
of, or
withdrawal from, any “pension plan” or
(ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company or any of the
Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(x)
Insurance . The Company and each of the Subsidiaries carry,
or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective businesses
and the value of their respective properties.
(y)
Taxes . The Company and each of the Subsidiaries have filed
all federal, state and local income and franchise tax returns
required to be filed through the date hereof and have paid all
taxes due thereon, except such as are being contested in good faith
by appropriate proceedings, and no tax deficiency has been
determined adversely to the Company or any of the Subsidiaries
which has had, nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
the Subsidiaries, would reasonably be expected to result in, a
Material Adverse Change.
(z)
Internal Controls . Each of the Company and the Subsidiaries
(A) make and keep accurate books and records and
(B) maintain internal accounting controls which provide
reasonable assurance that (i) transactions are executed in
accordance with management’s authorization,
(ii) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets, (iii) access to its assets is
permitted only in accordance with management’s authorization
and (iv) the reported accountability for its assets is
compared with existing assets at reasonable intervals. Except as
described in the Disclosure Package and the Prospectus, since the
end of the Company’s most recent audited fiscal year, there
has been (I) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) and (II) no change in the Company’s internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(aa)
Sarbanes-Oxley . The Company is in compliance, in all
material respects, with all applicable provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402
related to loans, and the requirement that the Company and its
consolidated subsidiaries maintain the following, among other,
controls and procedures:
(i) a system of
“internal accounting controls” as contemplated in
Section 13(b)(2)(B) of the Exchange Act;
(ii)
“disclosure controls and procedures” as such term is
defined in Rule 13a-15(e) under the Exchange Act; and
(iii)
“internal control over financial reporting” as such
term is defined in Rule 13a-15(f) under the Exchange
Act.
9
(bb)
Pending Proceedings and Examinations . The Registration
Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Securities Act, and the Company
is not the subject of a pending proceeding under Section 8A of
the Securities Act in connection with the offering of the
Securities.
(cc)
Regulation M . The Company has not taken and will not
take, directly or indirectly, any action prohibited by
Regulation M under the Exchange Act in connection with the
offering of Securities.
Any certificate
signed by any director or officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to the Underwriters as
to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation
Date subsequent thereto.
SECTION 2. Sale and Delivery of
the Securities to the Underwriters; Closing .
(a)
Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per
share set forth in Schedule B, the number of Initial
Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which
such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof.
(b)
Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase
up to an additional 1,500,000 shares of Common Stock, at the price
per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from
time to time only for the sole purpose of covering sales of shares
of Common Stock in excess of the aggregate number of Initial
Securities. Any such election to purchase Option Securities may be
exercised only by written notice from the Representatives to the
Company setting forth the number of Option Securities as to which
the several Underwriters are then exercising the option and the
time and date of payment and delivery for such Option Securities.
Any such time and date of delivery (a “ Date of
Delivery ”) shall be determined by the Representatives,
but in no event earlier than the later of (i) the Closing Date
and (ii) the second business day after the date of such notice
(unless the Representatives and the Company agree in writing to a
shorter period), and unless the Representatives and the Company
otherwise agree in writing, no later than 10 business days after
the date of such notice. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly will purchase that proportion of
the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any
sales or purchases of fractional shares.
10
(c)
Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the
offices of Davis Polk & Wardwell, 1600 El Camino Real, Menlo
Park, California 94025, or at such other place as shall be agreed
upon by the Representatives, at 9:30 A.M. (Eastern time) on
May 18, 2009, or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called “ Closing Date ”).
In addition, in
the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of
Delivery as specified in the notice from the Representatives to the
Company.
Payment for the
Initial Securities and the Option Securities shall be made to the
Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the
Representatives for the respective accounts of the Underwriters of
certificates for the Initial Securities and the Option Securities
to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for such Underwriter’s
account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Securities, including any Option
Securities, that it has agreed to purchase. Each of Goldman, Sachs
& Co. and J.P. Morgan Securities Inc., individually and not in
its capacity as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the
Securities, including any Option Securities, to be purchased by any
Underwriter whose funds have not been received by the Closing Date
or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
(d)
Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives
may request in writing at least one full business day before the
Closing Date or the relevant Date of Delivery, as the case may be.
The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and
packaging by the Representatives in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Date or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the
Company
The Company
covenants and agrees with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b) hereof, will
comply with the requirements of Rule 430B under the Securities
Act, and will promptly notify the Representatives, and confirm the
notice in writing, of (i) the effectiveness during the
Prospectus Delivery Period (as defined below) of any post-effective
amendment to the Registration Statement or the filing of any
supplement or amendment to any Preliminary Prospectus or the
Prospectus, (ii) the receipt of any comments from the
Commission during the Prospectus Delivery Period, (iii) any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement
11
to any
Preliminary Prospectus or the Prospectus or for additional
information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether
any Preliminary Prospectus and the Prospectus transmitted for
filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file
such document. The Company will use every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b)
Representatives’ Review of Proposed Amendments and
Supplements. During the period beginning on the date of this
Agreement and ending on the later of the Closing Date or such date,
as in the opinion of counsel for the Underwriters, a prospectus
relating to the Securities is no longer required by law to be
delivered in connection with sales of the Securities by an
Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the
Securities Act (the “ Prospectus Delivery Period
”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus (including any
amendment or supplement through incorporation by reference of any
report filed under the Exchange Act), the Company shall furnish,
within a reasonable time prior to filing such amendment or
supplement, to the Representatives for review a copy of each such
proposed amendment or supplement, and the Company shall not file or
use any such proposed amendment or supplement (except for any
amendment or supplement filed under the Exchange Act after the
Closing Date) to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c)
Delivery of Registration Statements. If requested, the
Company will furnish or deliver to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of
experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The Registration Statement and each
amendment thereto furnished to the Underwriters will be identical
to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d)
Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each Preliminary
Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Company will furnish to each
Underwriter, without charge, during the Prospectus Delivery Period,
such number of copies of the Prospectus as such Underwriter may
reasonably request. Each Preliminary Prospectus and the Prospectus
and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
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(e)
Continued Compliance with Securities Laws . The Company will
comply with the Securities Act and the Exchange Act so as to permit
the completion of the distribution of the Securities as
contemplated in this Agreement and the Prospectus. If, at any time
during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary to amend
the Registration Statement in order that the Registration Statement
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 or to amend or
supplement the Disclosure Package or the Prospectus in order that
the Disclosure Package or the Prospectus, as the case may be, 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 existing at the Initial Sale Time
or at the time it is delivered or conveyed to a purchaser, not
misleading, or if it shall be necessary at any such time to amend
the Registration Statement or amend or supplement the Disclosure
Package or the Prospectus in order to comply with the requirements
of the Securities Act, the Company will (1) notify the
Representatives of any such event, development or condition,
(2) promptly prepare and file with the Commission, subject to
Section 3(b) hereof, such amendment or supplement (including by
filing under the Exchange Act any document incorporated by
reference in the Disclosure Package or the Prospectus) as may be
necessary to correct such statement or omission or to make the
Registration Statement, the Disclosure Package or the Prospectus
comply with such requirements, and (3) the Company will
furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement to the Disclosure Package or the
Prospectus as the Underwriters may reasonably request.
(f) Blue
Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or
register the Securities for sale under (or obtain exemptions from
the application of) the state securities or blue sky laws of those
jurisdictions designated by the Representatives, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of
the Securities. The Company shall not be required to qualify to
transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of
(or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration
or exemption, the Company shall use every reasonable effort to
obtain the withdrawal thereof at the earliest possible
moment.
(g) Use
of Proceeds. The Company shall apply the net proceeds from the
sale of the Securities sold by it in the manner described under the
caption “ Use of Proceeds ” in each of the
Disclosure Package and the Prospectus.
(h)
Listing. The Company will use its best efforts to effect and
maintain the listing of the Securities on the New York Stock
Exchange.
(i)
Periodic Reporting Obligations. During the Prospectus
Delivery Period and subject to Section 3(b) hereof, the Company
shall file, on a timely basis, with the Commission all reports and
documents required to be filed under the Exchange Act.
13
(j)
Restriction on Sale of Certain Securities . During a period
of 90 days from the date hereof, the Company will not, without
the prior written consent of the Representatives (which consent may
be withheld at the sole discretion of the Representatives),
(i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to sell or
lend or otherwise transfer or dispose of any Common Stock or
similar securities or any securities convertible into or
exercisable or exchangeable or repayable for Common Stock or
similar securities or file any registration statement under the
Securities Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common
Stock, or similar securities, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by
delivery of Common Stock, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Initial Securities or the
Option Securities to be sold hereunder, (B) the concurrent
Equity Units offering or the shares of Common Stock underlying the
Equity Units, (C) exercise of an option or warrant or the
conversion of a security, in each case, outstanding on the date
hereof and referred to in the Disclosure Package and the Prospectus
or granted in accordance with clause (D) of this Section 3(j)
or (D) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit
plans, long-term incentive plans, dividend reinvestment or direct
stock purchase plans, employee savings (401-K) plans and executive
compensation plans of the Company or any of its subsidiaries, or
the filing of a registration statement relating to any such
plan.
(k) Final
Term Sheet . The Company will prepare a final term sheet
containing only a description of the Securities, in substantially
the form attached hereto as Schedule D, and will file such
term sheet pursuant to Rule 433(d) under the Securities Act within
the time required by such rule (such term sheet, the “
Final Term Sheet ”). The Final Term Sheet is an Issuer
Free Writing Prospectus for purposes of this Agreement.
(l)
Permitted Free Writing Prospectuses . The Company represents
that it has not made, and agrees that, unless it obtains the prior
written consent of the Representatives, and each Underwriter,
severally and not jointly, represents that it has not made, and
agrees with the Company that, unless it obtains the prior written
consent of the Company, it will not make, any offer relating to the
Securities that would constitute an “issuer free writing
prospectus” or that would otherwise constitute a “free
writing prospectus” (as those terms are defined in
Rule 405 of the Securities Act) required to be filed by the
Company with the Commission or retained by the Company under
Rule 433 of the Securities Act; provided that the prior
written consent of the Representatives shall be deemed to have been
given in respect of the Issuer General Use Free Writing
Prospectuses included in Annex I hereto and the electronic road
show recording relating to the Securities. Any such free writing
prospectus consented to by the Representatives is hereinafter
referred to as a “ Permitted Free Writing Prospectus
”. The Company agrees that (i) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus
as an Issuer Free Writing Prospectus, and (ii) has complied
and will comply, as the case may be, with the requirements of
Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record
keeping.
14
(m)
Notice of Inability to Use Automatic Shelf Registration
Statement Form. If at any time during the Prospectus Delivery
Period the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use
the automatic shelf registration statement form, the Company will
(i) promptly notify the Representatives, (ii) promptly
file a new registration statement or post-effective amendment on
the proper form relating to the Securities, in a form satisfactory
to the Representatives, (iii) use its best efforts to cause
such registration statement or post-effective amendment to be
declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all
other action necessary or appropriate to permit the public offering
and sale of the Securities to continue as contemplated in the
registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective
amendment, as the case may be.
(n)
Registration Statement Renewal Deadline. If immediately
prior to the third anniversary (the “ Renewal Deadline
”) of the initial effective date of the Registration
Statement, any of the Securities remain unsold by the Underwriters,
the Company will prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form
satisfactory to the Representatives. If the Company is no longer
eligible to file an automatic shelf registration statement, the
Company will prior to the Renewal Deadline, if it has not already
done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to the Representatives, and will
use its best efforts to cause such registration statement to be
declared effective within 60 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue
as contemplated in the expired registration statement relating to
the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may
be.
(o)
Filing Fees . The Company agrees to pay the required
Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) of the Securities Act without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Securities Act.
(p) No
Manipulation of Price. The Company will not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, under
the
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