Exhibit 1
EXECUTION COPY
UNDERWRITING AGREEMENT
$ 300,000,000
ROCKWELL COLLINS, INC.
5.25% Notes due 2019
Underwriting
Agreement
Banc of America
Securities LLC
J.P. Morgan
Securities Inc.
UBS Securities
LLC
As
Representatives of the
several Underwriters
listed
in
Schedule 1 hereto
c/o J.P. Morgan
Securities Inc.
270 Park
Avenue
New York, New
York 10017
Ladies and
Gentlemen:
Rockwell
Collins, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the several Underwriters listed in
Schedule 1 hereto (the “Underwriters”), for whom you
are acting as representatives (the “Representatives”),
$300,000,000 principal amount of its 5.25% Notes due 2019 (the
“Securities”). The Securities will be issued
pursuant to an Indenture dated as of November 1, 2001, as
supplemented as of December 4, 2006 (the “Indenture”)
between the Company and The Bank of New York Mellon Trust Company,
N.A. (as successor to The Bank of New York Trust Company, N.A.), as
trustee (the “Trustee”).
The Company
hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Securities, as
follows:
1.
Registration Statement . The Company has prepared
and filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-156442), including a prospectus
(the “Basic Prospectus”), relating to, among other
things, the debt securities to be issued from time to time by the
Company. Such registration statement, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement
at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Prospectus” means the final prospectus supplement
specifically relating to the Securities in the form to be filed by
the Company with the Commission pursuant to Rule 424(b) under the
Securities Act and first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities together
with the Basic Prospectus, and the term “Preliminary
Prospectus” means the preliminary prospectus supplement
specifically relating to the Securities filed by the Company with
the Commission pursuant to Rule 424 under the Securities Act
together with the Basic Prospectus. References herein to
the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the effective
date of the Registration Statement or the date of such Preliminary
Prospectus or Prospectus, as the case may be, and the terms
“supplement,” “amendment” and
“amend” as used herein with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company
after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) which are deemed to
be incorporated by reference therein.
At 2.40 pm (New York City time) on May 1, 2009,
which was at or immediately prior to the time when sales of the
Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively, the
“Time of Sale Information”): a Preliminary Prospectus
dated May 1, 2009, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act) listed
on Annex B hereto.
2.
Purchase of the Securities by the Underwriters
. (a) The Company agrees to issue and sell
the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal
amount of Securities set forth opposite such Underwriter's name in
Schedule 1 hereto at a price equal to 98.821% of the principal
amount thereof plus accrued interest, if any, from May 6, 2009 to
the Closing Date (as defined below). The Company will
not be obligated to deliver any of the Securities except upon
payment for all the Securities to be purchased as provided
herein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer
and sell Securities purchased by it to or through any
Underwriter.
(c) Payment
for and delivery of the Securities will be made at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017
at 10:00 A.M., New York City time, on May 6, 2009, or at such other
time or place on the same or such other date, not later than the
fifth business day thereafter, as the Representatives and the
Company may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the
“Closing Date”.
(d) Payment
for the Securities shall be made by wire transfer in immediately
available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository
Trust Company, for the account of the Underwriters, of one or more
global notes representing the Securities (collectively, the
“Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for
inspection by the Representatives not later than 1:00 P.M., New
York City time, on the business day prior to the Closing
Date.
(e) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor
any other Underwriter is advising the Company or any other person
as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company shall consult with its
own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have
no responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3.
Representations and Warranties of the Company
. The Company represents and warrants to each
Underwriter that:
(a)
Preliminary Prospectus. No order preventing or
suspending the use of the Preliminary Prospectus has been issued by
the Commission, and the Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with
the requirements of the Securities Act and did not
contain any untrue statement of a material fact or omit to state a
material fact (other than Rule 430 Information) required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with Underwriter
Information (as defined in Section 7).
(b)
Time of Sale Information . The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with Underwriter
Information. No statement of material fact included in
the Prospectus has been omitted from the Time of Sale Information
and no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(c)
Issuer Free Writing Prospectus. The
Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer
to buy the Securities (each such communication by the Company or
its agents and representatives (other than a communication referred
to in clauses (i) (ii) and (iii) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act, (ii) the
Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Annex B hereto and (v) any electronic road show or other
written communications, in each case approved in writing in advance
by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the requirements
of the Securities Act, has been or will be (within the time period
specified in Rule 433 under the Securities Act) filed in accordance
with the Securities Act (to the extent required thereby) and, when
taken together with the Preliminary Prospectus, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with Underwriter
Information.
(d)
Registration Statement and Prospectus. The
Registration Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement
has been issued by the Commission and no proceeding for that
purpose or pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or, to the
knowledge of the Company, threatened by the Commission; as of the
applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will
comply, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”), and did not
and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus
complied in all material respects with the requirements of the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the
Company makes no representation and warranty with respect to (i)
that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) of the
Trustee under the Trust Indenture Act or (ii) any statements or
omissions in the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in
conformity with Underwriter Information.
(e)
Incorporated Documents. The documents
incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information, when such documents
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Exchange Act and none of such documents, as of the date they became
effective or were filed with the Commission, as the case may be,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale
Information, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not, as of the date such documents
become effective or are filed with the Commission, contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(f)
Financial Statements. The financial statements
and the related notes thereto included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly in all material respects the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of their
operations and the consolidated changes in their cash flows for the
periods specified in conformity with U.S. generally accepted
accounting principles (subject to normal year-end adjustments)
applied on a consistent basis throughout the periods covered
thereby.
(g)
No Material Adverse Change. Since the date of
the most recent financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Time of Sale Information, there has not been any material adverse
change, or any development involving a prospective material adverse
change, in the business, properties, financial condition or results
of operations of the Company and its subsidiaries taken as a
whole.
(h)
Organization and Good Standing. The Company and
each of its significant subsidiaries have been duly organized and
are validly existing and in good standing (to the extent such
concept is relevant in any particular jurisdiction) under the laws
of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing (to the extent
such concept is relevant in any particular jurisdiction) in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have the corporate or limited liability
company, as applicable, power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so
qualified, in good standing or have such power or authority would
not, individually or in the aggregate, have a material adverse
effect on the business, properties, financial condition or results
of operations of the Company and its subsidiaries taken as a whole
or on the performance by the Company of its obligations under the
Securities (a “Material Adverse
Effect”). The subsidiaries listed in Schedule 2 to
this Agreement are the only significant subsidiaries of the
Company.
(i)
Capitalization. All the outstanding shares of
capital stock or other equity interests of each significant
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of any lien, encumbrance,
security interest, restriction on voting or transfer and are not
subject to any preemptive or similar rights in favor of any third
party.
(j)
Due Authorization. The Company has full
corporate power and authority to execute and deliver this
Agreement, the Securities and the Indenture (collectively, the
“Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all corporate action required to be
taken by the Company for the due and proper authorization,
execution and delivery by the Company of each of the Transaction
Documents and the consummation by the Company of the transactions
contemplated thereby has been duly and validly taken.
(k)
The Indenture. The Indenture has been duly authorized,
executed and delivered by the Company and has been duly qualified
under the Trust Indenture Act and constitutes a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting the
enforcement of creditors’ rights generally or by general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law (collectively, the
“Enforceability Exceptions”).
(l)
The Securities . The Securities have been duly
authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
(m)
Underwriting Agreement . This Agreement has been
duly authorized, executed and delivered by the Company.
(n)
Descriptions of the Transaction Documents . The
Securities and the Indenture conform in all material respects to
the description thereof contained under the captions
“Description of Debt Securities” and “Description
of the Notes” in the Registration Statement, the Preliminary
Prospectus and the Prospectus, respectively.
(o)
No Violation or Default. Neither the Company nor
any of its significant subsidiaries is (i) in violation of its
charter or by-laws or similar organizational documents; (ii) in
default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject;
or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or
regulatory authority having jurisdiction over it, except, in the
case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p)
No Conflicts. The execution, delivery and
performance by the Company of each of the Transaction Documents,
the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation by the Company
of the transactions contemplated by the Transaction Documents will
not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its significant subsidiaries or (iii) result in
the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority having jurisdiction over the Company, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(q)
No Consents Required . No consent, approval,
authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance
by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for
such consents, approvals, authorizations, orders and registrations
or qualifications (i) as have been obtained under the Securities
Act and the Trust Indenture Act, (ii) as may be required under
applicable state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters, or (iii)
which the failure to obtain or possess would not, individually or
in the aggregate, have a Material Adverse Effect.
(r)
Legal Proceedings. Except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, there are no legal, governmental or regulatory actions,
suits or proceedings, or to the knowledge of the Company,
governmental or regulatory investigations, pending to which the
Company or any of its subsidiaries is or is reasonably likely to be
a party or to which any property of the Company or any of its
subsidiaries is or is reasonably likely to be the subject that,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect; to the knowledge of the Company no
such investigations, actions, suits or proceedings are threatened
or contemplated by any governmental or regulatory authority or
threatened by others.
(s)
Independent Accountants. Deloitte and Touche
LLP, which has audited and reviewed certain financial statements of
the Company and its subsidiaries, is an independent registered
public accounting firm with respect to the Company and its
subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(t)
Title to Real and Personal Property. The Company
and its significant subsidiaries own, lease or have the right to
use all of their properties as are necessary to the conduct of the
operations of the Company and its significant subsidiaries as
presently conducted and as described in the Registration Statement,
the Time of Sale Information and the Prospectus, except where the
failure to own, lease or have a right to use such properties would
not, individually or in the aggregate, have a Material Adverse
Effect.
(u)
Title to Intellectual Property. The Company and
its significant subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) as are necessary
for the conduct of their respective businesses as presently
conducted and as described in the Registration Statement, the Time
of Sale Information and the Prospectus, except where the failure to
own or possess such rights would not, individually or in the
aggregate, have a Material Adverse Effect; and, to the knowledge of
the Company, the conduct of their respective businesses as
presently conducted does not conflict in any material respect with
any such rights of others, except for such conflicts as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(v)
Investment Company Act. The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, will not be an “investment company” or an
entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company
Act”).
(w)
Licenses and Permits. The Company and its
significant subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as presently
conducted and as described in the Registration Statement, the Time
of Sale Information and the Prospectus, except where the failure to
possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect.
(x)
No Labor Disputes. No labor disturbance by or
dispute with groups of employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
threatened, except, in each case, as would not, individually or in
the aggregate, have a Material Adverse Effect.
(y)
Compliance With Environmental Laws. Except as
are disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus (i) the Company and its subsidiaries
are, and at all prior times were, in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the
protection of human health or safety, the environment, natural
resources, hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, “Environmental Laws”); (ii)
there are no costs or liabilities associated with Environmental
Laws of or relating to the Company or its subsidiaries and neither
the Company nor any of its subsidiaries has received notice of any
such liability or potential liability, except in the case of each
of (i) and (ii) above, for any such failure to comply or cost or
liability, as would not, individually or in the aggregate, have a
Material Adverse Effect; and (iii) none of the Company and its
subsidiaries anticipates material capital expenditures relating to
any Environmental Laws.
(z)
Disclosure Controls . The Company maintains a
system of “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that is designed to
ensure that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms,
including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding
required disclosure. The Company has carried out
evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act. Such disclosure controls and procedures were
effective as of December 31, 2008, and, to the knowledge of the
Company, are effective as of the date hereof and as of the Closing
Date.
(aa)
Accounting Controls. The Company maintains
systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that comply with
the requirements of the Exchange Act and have been designed by, or
under the supervision of, its principal executive and principal
financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with U.S. generally accepted accounting
principles. There were no material weaknesses in the
Company’s internal control over financial reporting as of
December 31, 2008, and, to the knowledge of the Company, there are
no material weaknesses in its internal control over financial
reporting as of the date hereof and as of the Closing
Date.
(bb) No
Unlawful Payments. Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment (in each of clauses (i), (ii), (iii) and (iv), with such
exceptions as are not material). The Company’s internal
accounting controls and procedures are sufficient to cause the
Company to comply with Section 78m(b)(2) of the Foreign Corrupt
Practices Act of 1977, as amended.
(cc)
Compliance with Money Laundering Laws . The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(dd) Compliance
with OFAC. None of the Company, any of its subsidiaries
or, to the knowledge of the Company, any director, officer, agent,
employee or Affiliate of the Company or any of its subsidiaries is
currently designated on the Specially Designated Nationals and
Blocked Persons List (“SDN List”) maintained by the
Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”) (available on-line at:
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html) or
located, organized or resident in a country or territory that is
currently the subject of economic sanctions administered by OFAC
(at the date hereof, Burma/Myanmar, Cuba, Iran, North Korea, Sudan
and Syria); and the Company will not directly or indirectly use the
proceeds of the offering of the Securities hereunder, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person that, at the
time of such financing, is the subject of any U.S. sanctions
administered by OFAC as described above.
(ee)
Status under the Securities Act . The Company is
not an ineligible issuer and is a well-known seasoned issuer, in
each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the
offering of the Securities.
4.
Further Agreements of the Company . The Company
covenants and agrees with each Underwriter that:
(a)
Required Filings. The Company will (i) pay the
registration fees for this offering of the Securities within the
time period required by Rule 456(b)1(i) under the Securities Act
(without giving effect to the proviso therein) and in any event
prior to the Closing Date, and (ii) file the Prospectus in a form
reasonably approved by the Underwriters with the Commission
pursuant to Rule 424(b) under the Securities Act within the time
periods specified by Rule 424(b) and Rule 430A, 430B or 430C under
the Securities Act. The Company will file any Issuer
Free Writing Prospectus (including the Term Sheet in the form of
Annex C hereto) to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent
not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request. The Company will
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and during the Prospectus
Delivery Period. As used herein, the term
“Prospectus Delivery Period” means such period of time
after the first date of the public offering of the Securities as in
the opinion of counsel for the Underwriters a prospectus relating
to the Securities is required by law to be delivered (or required
to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or
dealer.
(b)
Delivery of Copies. The Company will deliver,
without charge, to each Underwriter (i) upon request, a conformed
copy of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents
filed therewith and (ii) during the Prospectus Delivery Period, as
many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the
Representatives may reasonably request.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses.
Prior to the completion of the initial resale of the
Securities by the Underwriters, before using or filing any Issuer
Free Writing Prospectus, and before filing any amendment or
supplement to the Registration Statement or the Prospectus, the
Company will (i) notify the Representatives of any such use or
filing, (ii) furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus,
amendment or supplement for review (other than any amendments or
supplements made by the filing of documents under the Exchange Act)
and (iii) not use or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the
Representatives reasonably object (other than any amendments or
supplements made by the filing of documents under the Exchange
Act). The Company’s obligations under this
paragraph (c) shall expire on the Closing Date unless the
Representatives shall notify the Company in writing otherwise on or
before the Closing Date, and if such notice is given, the
Company’s obligations under this paragraph (c) shall expire
on the date which is the earlier of (i) six months after the
Closing Date and (ii) the completion of the initial resale of the
Securities by the Underwriters. The Underwriters shall
promptly notify the Company of such completion.
(d)
Notice to the Representatives. Until termination
of the Prospectus Delivery Period, the Company will advise the
Representatives promptly (or, in the case of clauses (v) and (vi),
promptly upon the Company becoming aware thereof), and confirm such
advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective (other than any
amendments made by the filing of documents under the Exchange Act);
(ii) when any supplement to the Prospectus or any amendment to the
Prospectus or any Issuer Free Writing Prospectus has been filed
(other than any amendments or supplements made by the filing of
documents under the Exchange Act); (iii) of any request by the
Commission to the Company for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission to
the Company for any additional information; (iv) of the issuance by
the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, (v) of the initiation or
threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (vi) of the occurrence of any
event within the Prospectus Delivery Period as a result of which
the Prospectus, the Time of Sale Information or any Issuer Free
Writing Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances existing
when the Prospectus, the Time of Sale Information or any such
Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vii) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (viii) of the receipt by
the Company of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any
jurisdiction or upon the Company becoming aware of the initiation
or threatening of any proceeding for such purpose; and the Company
will use its reasonable efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of the Preliminary Prospectus or
the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will use reasonable
efforts to obtain as soon as possible the withdrawal
thereof.
(e)
Time of Sale Information. If at any time prior
to the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Time of Sale Information as then
amended or supplemented would 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,
not misleading or (ii) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the
extent required) and furnish to the Underwriters and to such
dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended
or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law.
(f)
Ongoing Compliance . If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law
(g)
Blue Sky Compliance. The Company will take such
actions as the Representatives reasonably request to qualify the
Securities for offer and sale by the Underwriters under the
securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of
the Securities; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file or take any
action that would constitute a general consent to service of
process in any such jurisdiction or (iii) subject itself or any of
its affiliates to taxation in any such jurisdiction if it is not
otherwise so subject.
(h)
Earning Statement. The Company will make
generally available to its security holders as soon as reasonably
practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of
the Registration Statement.
(i)
Clear Market. During the period from the date
hereof through and including the Closing Date, the Company will
not, without the prior written consent of the Representatives,
offer, sell, contract to sell or otherwise dispose of any debt
securities issued or guaranteed by the Company and having a tenor
of more than one year.
(j)
Use of Proceeds. The Company will app
