$275,000,000 AGGREGATE PRINCIPAL
AMOUNT
OLD REPUBLIC
INTERNATIONAL CORPORATION
8.00% CONVERTIBLE SENIOR NOTES
DUE 2012
UNDERWRITING AGREEMENT
dated April 23, 2009
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
MERRILL LYNCH,
PIERCE, FENNER & SMITH
One Bryant
Park
New York, NY 10036
As Representative
of the several Underwriters
Introductory . Old Republic International Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in
Schedule A (the “Underwriters”)
$275,000,000 in aggregate principal amount of its 8.00% Convertible
Senior Notes due 2012 (the “Firm Notes”). In addition,
the Company has granted to the Underwriters an option to purchase
up to an additional $41,250,000 in aggregate principal amount of
its 8.00% Convertible Senior Notes due 2012 (the “Optional
Notes” and, together with the Firm Notes, the
“Notes”), as provided in Section 2. Merrill Lynch,
Pierce, Fenner & Smith Incorporated has agreed to act as the
representative of the several Underwriters (“Merrill
Lynch” and in such capacity, the
“Representative”) in connection with the offering and
sale of the Notes. To the extent there are no additional
Underwriters listed on Schedule A other than you, the
term Underwriters as used herein shall mean you, as the sole
Underwriter. The term Underwriters shall mean either the singular
or plural as the context requires.
The Company and
the Underwriters agree that up to $2,000,000 of the Firm Notes to
be purchased by the Underwriters (the “Directed Notes”)
shall be reserved for sale at the public offering price by the
Underwriters to certain eligible directors and officers of the
Company (collectively, the “DNP Participants”), as part
of the distribution of the Notes by the Underwriters (the
“Directed Note Program”) subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of
the Financial Industry Regulatory Authority (“FINRA”)
and all other applicable laws, rules and regulations. Merrill Lynch
shall be selected to process the sales to the DNP Participants
under the Directed Note Program. To the extent that such Directed
Notes are not orally confirmed for purchase by the DNP Participants
by noon New York City time on the date of this Agreement, such
Directed Notes may be offered to the public as set forth in the
Registration Statement, the Disclosure Package and the Prospectus
(as defined below). The Company has supplied Merrill Lynch with the
names, addresses and telephone numbers of the individuals or other
entities that the Company has designated to be participants in the
Directed Note Program.
The
Notes will be convertible on the terms, and subject to the
conditions, set forth in the Indenture, dated as of August 15,
1992, between the Company and Wilmington Trust Company, as trustee
(the “Trustee”), as supplemented by the Supplemental
Indenture thereto, dated as of the Closing Date (as defined herein)
(collectively, the “Indenture”). As used herein,
“Conversion Shares” means the fully paid, nonassessable
shares of common stock, par value $1.00 per share, of the Company
(the “Common Stock”) and accompanying rights (the
“Rights”) to be received by the holders of the Notes
upon conversion of the Notes pursuant to the terms of the Notes and
the Indenture. The Notes will be convertible initially at a
conversion rate of 86.8056 shares per $1,000 principal amount of
the Notes, on the terms, and subject to the conditions, set forth
in the Notes and the Indenture. The term “Securities”
means the Notes and/or the Conversion Shares.
The
Company hereby confirms its agreements with the Underwriters as
follows:
Section 1. Representations and Warranties of the
Company.
The
Company hereby represents and warrants to, and covenants with, each
Underwriter as follows:
(a)
Preparation and Filing of Registration Statement and
Prospectus. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement on Form S-3 (File
No. 333-142462) covering the public offering and sale of
certain securities from time to time, including the Securities,
under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the
“Securities Act”), which automatic shelf registration
statement became effective under Rule 462(e) under the Securities
Act (“Rule 462(e)”). Such registration statement,
as of any time, means such registration statement as amended by any
post-effective amendments thereto to such time, including the
exhibits and any schedules thereto at such time, the documents
incorporated or deemed to be incorporated by reference therein at
such time pursuant to Item 12 of Form S-3 under the Securities
Act and the documents otherwise deemed to be a part thereof as of
such time pursuant to Rule 430B under the Securities Act
(“Rule 430B”), is referred to herein as the
“Registration Statement”; provided, however, that the
“Registration Statement” without reference to a time
means such registration statement as amended by any post-effective
amendments thereto as of the time of the first contract of sale for
the Notes, which time shall be considered the “new effective
date” of such registration statement with respect to the
Notes within the meaning of Rule 430B(f)(2), including the
exhibits and schedules thereto as of such time, the documents
incorporated or deemed incorporated by reference therein at such
time pursuant to Item 12 of Form S-3 under the Securities Act
and the documents otherwise deemed to be a part thereof as of such
time pursuant to the Rule 430B. Each preliminary prospectus
and prospectus supplement used in connection with the offering of
the Notes, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, are collectively referred to herein
as the “Preliminary Prospectus.” Promptly after
execution and delivery of this Agreement (the “Execution
Time”), the Company will prepare and file a prospectus
supplement relating to the Securities in accordance with the
provisions of Rule 424(b) under the Securities Act
(“Rule 424(b)”). The final prospectus and the
prospectus supplement, in the form first furnished or made
available to the Underwriters for use in connection with the
offering of the Notes, including the documents incorporated or
deemed to be incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, are collectively
referred to herein as the “Prospectus”. Any reference
in this Agreement to the Registration Statement, the Preliminary
Prospectus or 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 Preliminary
Prospectus or the Prospectus shall be deemed to include all such
financial statements and schedules and other information
incorporated or deemed incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be, prior to the Execution Time; and
all references in this Agreement to amendments or supplements to
the Registration Statement, the Preliminary Prospectus or the
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 hereunder (collectively, the
“Exchange Act”), incorporated or deemed to be
incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus, as the case may be, at or
after the Execution Time.
2
(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. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 under
the Securities Act (“Rule 405”), and the
Securities have been and remain eligible for registration by the
Company on a Rule 405 automatic shelf registration statement.
The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement, or notice objecting to its use pursuant to
Rule 401(g)(2) under the Securities Act
(“Rule 401(g)(2)”), has been issued by the
Commission and no order or notice from any court, arbitrator,
regulatory body, administrative agency, governmental body or other
authority or agency (collectively, “Governmental
Entity”) preventing or suspending the use of the Registration
Statement, the Preliminary Prospectus or the Prospectus or any
proceeding for such purpose has been instituted or is pending or,
to the Company’s knowledge, is contemplated or threatened by
a Governmental Entity.
Each
of the Registration Statement and any post-effective amendment
thereto, at the time of their respective effectiveness, at each
deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2), at the date hereof, at the Closing Date and
at any Subsequent Closing Date (as defined herein), complied,
complies and will comply in all material respects with the
Securities Act and did not, does 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 in order to make the
statements therein not misleading.
The
Preliminary Prospectus and the Prospectus, when filed with the
Commission, complied and will comply in all material respects with
the Securities Act. The Prospectus and any supplement or amendment
thereto, as of their respective dates, at the time of any filing
pursuant to Rule 424(b), at the Closing Date and at any Subsequent
Closing Date, did not, does not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
The
representations and warranties set forth in the immediately
preceding two paragraphs do not apply to (i) the Statement of
Eligibility (Form T-1) of the Trustee under the Trust Indenture Act
of 1939, as amended (the “Trust Indenture Act”),
(ii) statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus, or any amendment or supplement thereto, based upon and
in conformity with written information furnished to the Company by
any Underwriter through the Representative 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 hereof, or
(iii) any statement that does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule 412
under the Securities Act.
There
is no contract or other document required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that has not been described
or filed as required.
(c)
Incorporated Documents . The documents incorporated by
reference in the Registration Statement, the Disclosure Package and
the Prospectus, when the Registration Statement became effective or
when the documents incorporated by reference were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and when read together with the other information
contained in the Registration Statement, the Disclosure Package or
the Prospectus, as the case may
3
be, none of
such documents included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. Any further documents so filed and
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and when read together with the other
information contained in the Registration Statement, 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 light of
the circumstances under which they were made, not
misleading.
(d)
Disclosure Package. The term “Disclosure
Package” shall mean, collectively, (i) the base
prospectus, dated April 30, 2007, (ii) the preliminary
prospectus supplement, dated April 22, 2009, (iii) the Final
Term Sheet (as defined herein), (iv) any issuer free writing
prospectuses, as defined in Rule 433 under the Securities Act
(each, an “Issuer Free Writing Prospectus”), other than
the Final Term Sheet, that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package and (v) any other free writing prospectus that the
parties hereto shall hereafter expressly agree in writing to treat
as part of the Disclosure Package. As of 8:30 a.m., New York City
time, on April 24, 2009 (the “Applicable Time”),
the Disclosure Package did not include 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. The immediately
preceding sentence does not apply to (i) the Statement of
Eligibility (Form T-1) of the Trustee under the Trust Indenture
Act, (ii) statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representative 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
hereof, or (iii) any statement that does not constitute part
of the Registration Statement or the Prospectus pursuant to
Rule 412 under the Securities Act.
(e)
Company is a Well-Known Seasoned Issuer . (A) At the
original effectiveness of the Registration Statement, (B) 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), (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Securities Act) made any offer relating to
the Securities in reliance on the exemption of Rule 163 under
the Securities Act, and (D) as of the Execution Time, the
Company was and is a “well-known seasoned issuer,” as
defined in Rule 405.
(f)
Company Not Ineligible Issuer. (i) At the original
effectiveness of the Registration Statement, (ii) at the
earliest time after the original effectiveness of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under
the Securities Act) of the Securities and (iii) as of the
Execution Time (with such Execution Time being used as the
determination date for purposes of this clause (iii)), the Company
was not and is not an “ineligible issuer,” as defined
in Rule 405, without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an ineligible issuer.
(g)
Issuer Free Writing Prospectuses. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the offering of Securities under this
Agreement or until any earlier date that the Company notified or
notifies the
4
Representative
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, the
Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), including any document incorporated or deemed
incorporated by reference therein that has not been superseded or
modified. 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 Issuer Free Writing Prospectus conflicted
or would conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), the Company
has promptly notified or will promptly notify the Representative
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 immediately preceding
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 Representative 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 hereof.
(h)
Accuracy of Statements. The statements in the Registration
Statement, the Preliminary Prospectus and the Prospectus under the
headings “Description of Notes,” “Certain U.S.
Federal Income Tax Considerations,” “Description of
Securities,” and incorporated by reference from the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2008 under the heading “Business-Government
Regulation”, insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings in all material respects.
(i)
Distribution of Offering Material By the Company. The
Company has not distributed and will not distribute, prior to the
later of the last Subsequent Closing Date and the completion of the
Underwriters’ distribution of the Notes, any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement, the Preliminary Prospectus,
any Permitted Free Writing Prospectus (as defined herein), the
Final Term Sheet or the Prospectus.
(j)
The Underwriting Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(k)
Authorization of the Indenture . The Indenture has been duly
qualified under the Trust Indenture Act. The Indenture has been
duly authorized by the Company and, on the Closing Date, will have
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by
general equitable principles. The Indenture conforms in all
material respects to the description thereof contained in the
Registration Statement, the Disclosure Package and the
Prospectus.
(l)
Authorization of the Notes . The Notes have been duly
authorized by the Company and, when the Notes are executed,
authenticated and issued in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement on the Closing Date or any Subsequent
Closing Date, as the case may be, the Notes will constitute valid
and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by
5
bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by
general equitable principles. The Notes will conform in all
material respects to the description thereof contained in the
Registration Statement, the Disclosure Package and the
Prospectus.
(m)
Authorization of the Conversion Shares . The Conversion
Shares have been duly authorized and reserved by the Company and,
when issued upon conversion of the Notes in accordance with the
terms of the Notes and the Indenture, will be validly issued, fully
paid and nonassessable, and the issuance of the Conversion Shares
will not be subject to any preemptive rights, rights of first offer
or refusal or other similar rights to subscribe for or purchase
securities of the Company or any subsidiary of the Company. The
Common Stock (including the Conversion Shares) conforms in all
material respects to the description thereof contained in the
Registration Statement, the Disclosure Package and the
Prospectus.
(n)
No Stamp or Transfer Taxes . There are no stamp or other
issuance or transfer taxes or duties or other similar fees or
charges under U.S. federal law, the laws of any state, or any
political subdivisions thereof, or any other U.S. or non-U.S.
governmental authority required to be paid in connection with the
execution and delivery of this Agreement, the issuance or sale by
the Company of the Notes or the issuance of Common Shares upon the
conversion of the Notes.
(o)
No Applicable Registration or Other Similar Rights . 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.
(p)
No Material Adverse Change . Except as otherwise disclosed
in the Registration Statement, the Disclosure Package and the
Prospectus, subsequent to the respective dates as of which
information is given therein: (i) there has been no material
adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, business, properties,
operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Company and its
subsidiaries considered as one entity (any such change or
development is called a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation,
indirect, direct or contingent, or entered into any material
transaction or agreement; and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company
or, except for dividends paid to the Company or other subsidiaries
of the Company, any of its subsidiaries on any class of capital
stock or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(q)
Independent Accountants . Pricewaterhouse Coopers LLP, who
have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules filed with the
Commission and incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, are
independent registered public accountants with respect to the
Company as required by the Securities Act and the Exchange
Act.
(r)
Preparation of the Financial Statements . The financial
statements filed with the Commission and incorporated by reference
in the Registration Statement, the Disclosure Package and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of and at the dates indicated and
the results of their operations and cash flows for the periods
specified. Any supporting schedules incorporated by reference in
the Registration Statement, the Disclosure Package and the
Prospectus present fairly the information required to be stated
therein.
6
Such financial
statements and supporting schedules comply as to form with the
applicable accounting requirements of the Securities Act and have
been prepared in conformity with generally accepted accounting
principles as applied in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. No
other financial statements or supporting schedules are required to
be included or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus under the
Securities Act or the Exchange Act. The financial data incorporated
by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus from the Company’s Annual
Report on Form 10-K for the year ended December 31, 2008 under
the caption “Selected Financial Data” fairly present
the information set forth therein 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 Company’s ratios of earnings to fixed
charges included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus have been
calculated in compliance with Item 503(d) of Regulation S-K
under the Securities Act.
(s)
Incorporation and Good Standing of the Company and its
Subsidiaries . Each of the Company and its subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation and has corporate power and authority to own or
lease, as the case may be, and operate its properties and to
conduct its business as described in the Registration Statement,
the Disclosure Package and the Prospectus and, in the case of the
Company, to enter into and perform its obligations under this
Agreement, the Indenture and the Notes. Each of the Company and its
subsidiaries 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 for such
jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a
material adverse effect on the condition, financial or otherwise,
or on the earnings, business, properties, operations or prospects,
whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries considered as one
entity (a “Material Adverse Effect”). All of the issued
and outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim.
The Company does
not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Exhibit 21 to the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2008. The subsidiaries
listed on Annex A attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X.
(t)
Capitalization and Other Capital Stock Matters . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Registration Statement, the Disclosure Package
and the Prospectus under the caption “Capitalization”
(other than for subsequent issuances, if any, pursuant to employee
benefit plans described in the Registration Statement, the
Disclosure Package and the Prospectus or upon exercise of any
outstanding options or warrants described in the Registration
Statement, the Disclosure Package and the Prospectus, as the case
may be). All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and have been issued in compliance
with U.S. federal and state securities laws. None of the
outstanding shares of capital stock of the Company were issued in
violation of any preemptive rights, rights of first offer or
refusal or other similar rights to subscribe for or purchase
securities of the Company or any subsidiary of the Company. There
are no authorized or outstanding options, warrants, preemptive
rights, rights of first
7
offer or
refusal or other similar rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than
those accurately described in the Registration Statement, the
Disclosure Package and the Prospectus. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
in the Registration Statement, the Disclosure Package and the
Prospectus accurately and fairly presents in all material respects
the information required to be shown with respect to such plans,
arrangements, options and rights.
(u)
Listing . The Common Stock is listed on the New York Stock
Exchange (the “NYSE”).
(v)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required . Neither the Company nor
any of its subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time, would be in default)
(“Default”) under its charter, by-laws or other
organizational documents, (ii) in Default under any indenture,
mortgage, loan or credit agreement, deed of trust, note, contract,
franchise, lease or other agreement, obligation, condition,
covenant or instrument to which the Company or such subsidiary is a
party or by which it may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject
(each, an “Existing Instrument”) or (iii) in
violation of any statute, law, rule, regulation, judgment, order or
decree of any Governmental Entity having jurisdiction over the
Company or such subsidiary or any of their respective property or
assets, as applicable, except with respect to clause
(ii) only, for such Defaults as would not, individually or in
the aggregate, have a Material Adverse Effect.
The
Company’s execution, delivery and performance of this
Agreement, the Indenture and the Notes and consummation of the
transactions contemplated hereby or thereby, by the Disclosure
Package or by the Prospectus (i) have been duly authorized by
all necessary corporate action and will not result in any Default
under the charter, by-laws or other organizational documents of the
Company or any of its subsidiaries, (ii) will not conflict
with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any
Existing Instrument and (iii) will not result in any violation
of any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any
Governmental Entity having jurisdiction over the Company or any of
its subsidiaries or any of their respective property or assets. No
consent, approval, authorization or other order of, or registration
or filing with, any Governmental Entity is required for the
Company’s execution, delivery and performance of this
Agreement, the Indenture or the Notes or consummation of the
transactions contemplated hereby or thereby, by the Disclosure
Package or by the Prospectus, except such as have been obtained or
made by the Company and are in full force and effect or as may be
required under applicable state securities laws and from FINRA. As
used herein, a “Debt Repayment Triggering Event” means
any event or condition which gives, or with the giving of notice or
lapse of time would give, the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(w)
No Material Actions or Proceedings . Except as otherwise
disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, there are no legal or governmental actions, suits
or proceedings pending or, to the Company’s knowledge,
threatened against or affecting the Company or any of its
subsidiaries or any of their respective property or assets which
(i) are required to be described in the Registration
Statement, the Disclosure Package or the Prospectus under the
Securities Act or the Exchange Act and are not so described or (ii)
could have a
8
Material
Adverse Effect or materially affect the power or ability of the
Company to perform its obligations under this Agreement, the
Indenture or the Notes or to consummate any of the transactions
contemplated hereby or thereby, by the Disclosure Package or by the
Prospectus.
(x)
Labor Matters . No labor problem or dispute with the
employees of the Company or any of its subsidiaries exists or is
threatened or imminent, and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees
of any of its or its subsidiaries’ principal suppliers,
contractors or customers, that could have a Material Adverse
Effect.
(y)
Intellectual Property Rights . The Company and its
subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s consolidated business as now conducted or as
proposed in the Registration Statement, the Disclosure Package and
the Prospectus to be conducted. Except as set forth in the
Registration Statement, the Disclosure Package and the Prospectus:
(a) no party has been granted an exclusive license to use any
portion of such Intellectual Property owned by the Company or any
of its subsidiaries; (b) to the Company’s knowledge,
there is no material infringement by third parties of any such
Intellectual Property owned by or exclusively licensed to the
Company or any of its subsidiaries; (c) there is no pending
or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the rights of the Company
or any of its subsidiaries in or to any material Intellectual
Property, and the Company is unaware of any facts that would form a
reasonable basis for any such claim; (d) to the
Company’s knowledge, there is no pending or threatened
action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property, and the
Company is unaware of any facts that would form a reasonable basis
for any such claim; and (e) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company’s consolidated business as
now conducted infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact that would
form a reasonable basis for any such claim.
(z)
All Necessary Permits, etc. Except as otherwise disclosed in
the Registration Statement, the Disclosure Package and the
Prospectus, the Company and its subsidiaries possess such valid and
current licenses, certificates, authorizations or permits issued by
the appropriate U.S. federal or state or foreign Governmental
Entities necessary to conduct the Company’s consolidated
business, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such license,
certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(aa)
Title to Properties. Except as otherwise disclosed in the
Registration Statement, the Disclosure Package and the Prospectus,
the Company and its subsidiaries have good and marketable title to
all the property and assets reflected as owned in the financial
statements referred to in Section 1(r) above or elsewhere in the
Registration Statement, the Disclosure Package or the Prospectus,
in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such
property and do not materially interfere with the use made or
proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal
property held under lease by the Company or any of its subsidiaries
are held under valid and enforceable leases, with such exceptions
as are not material and do not materially
9
interfere with
the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
(bb)
Tax Law Compliance. The Company and its subsidiaries have
filed all necessary U.S. federal, state and local and foreign
income and franchise tax returns in a timely manner and have paid
all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied
against any of them, except for any taxes, assessments, fines or
penalties (i) as may be being contested in good faith and by
appropriate proceedings and (ii) the failure of which to have
been paid would not result in a Material Adverse Effect. The
Company has made appropriate provisions in the applicable financial
statements referred to in Section 1(r) above in respect of all U.S.
federal, state and local and foreign income and franchise taxes for
all current or prior periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally
determined.
(cc)
Environmental Laws. Except as otherwise disclosed in the
Registration Statement, the Disclosure Package and the Prospectus
and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of
its 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 its 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 its 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 its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(dd)
Company Not an “Investment Company" . The Company is
not, and after receipt of payment for the Notes and the application
of the net proceeds thereof as contemplated under the caption
“Use of Proceeds” in the Preliminary Prospectus and the
Prospectus will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated thereunder (the
“Investment Company Act”).
(ee)
Compliance with Reporting Requirements. The Company is
subject to, and in full compliance with, the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act.
(ff)
No Restrictions on Dividends or Other Distributions . Except
as described in the Registration Statement, the Disclosure Package
and the Prospectus, neither the Company or any subsidiary of the
Company is prohibited or otherwise restricted, by applicable law or
regulation, order of any Governmental Entity, contract or
otherwise, directly or indirectly, from paying any dividends or
making other distributions, from, repaying to the Company, in the
case of
10
any subsidiary
of the Company, any loans or advances to such subsidiary from the
Company or from transferring, in the case of any subsidiary of the
Company, any of such subsidiary’s property or assets to the
Company or any other subsidiary of the Company.
(gg)
No Price Stabilization or Manipulation . The Company has not
taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result
in stabilization or manipulation of the price of any security of
the Company or any of its subsidiaries to facilitate the sale or
resale of the Securities.
(hh)
Related Party Transactions . There are no business
relationships or related-party transactions involving the Company
or any of its subsidiaries or any other person required to be
described in the Registration Statement, the Preliminary Prospectus
or the Prospectus under the Securities Act or the Exchange Act that
have not been described as required.
(ii)
Internal Controls and Procedures . The Company maintains
(i) effective internal control over financial reporting (as
defined in Rule 13a-15 and 15d-15 under the Exchange Act), and
(ii) a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(jj)
No Material Weakness in Internal Controls . Except as
disclosed in the Registration Statement, 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.
(kk)
Disclosure Controls . The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15 and
Rule 15d-15 under the Exchange Act) that is designed to ensure
that information required to be disclosed by the Company in reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is
accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 and Rule 15d-15 under
the Exchange Act.
(ll)
Stock Options . Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, with respect
to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company and
its subsidiaries (the “Company Stock Plans”),
(i) each Stock Option designated by the Company or the
relevant subsidiary of the Company at the time of grant as an
“incentive stock option” under Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”),
so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company or
the relevant subsidiary of the Company (or a duly
11
constituted and
authorized committee thereof) and any required stockholder approval
by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was
made in accordance with the terms of the Company Stock Plans, the
Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the NYSE and any other
exchange on which the securities of the Company or the relevant
subsidiary of the Company are traded and (iv) the per share
exercise price of each Stock Option was equal to or greater than
the fair market value of a share of Common Stock on the applicable
Grant Date. Neither the Company nor any of its subsidiaries has
knowingly granted, and there is no, and has been no, policy or
practice of the Company or any of its subsidiaries of granting,
Stock Options prior to, or otherwise coordinating the grant of
Stock Options with, the release or other public announcement of
material information regarding the Company or its subsidiaries or
their financial condition, liquidity, results of operations or
prospects.
(mm)
Insurance Regulatory Matters . Each of the Company and each
of its subsidiaries that is engaged in the business of insurance or
reinsurance (each such subsidiary, an “Insurance
Subsidiary”) is duly licensed or registered as a holding
company, as an insurer or as a reinsurer, as the case may be, under
the insurance laws (including, without limitation, laws that relate
to companies that control insurance companies) and the rules,
regulations and interpretations of the insurance regulatory
authorities thereunder (collectively, the “Insurance
Laws”) of each jurisdiction in which the conduct of its
business as described in the Registration Statement, the Disclosure
Package and the Prospectus requires such licensing or registration
(each such license or registration, an “Insurance
License”). Each of the Company and its Insurance Subsidiaries
has made all required material filings under applicable holding
company statutes or other Insurance Laws in each jurisdiction where
such filings are required. Each of the Insurance Subsidiaries has
all other necessary authorizations, approvals, orders, consents,
certificates, permits, registrations and qualifications of and from
all insurance regulatory authorities (together with the Insurance
Licenses, the “Insurance Licenses and Authorizations”)
necessary to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and all of the
foregoing are in full force and effect except where the failure to
have such Insurance Licenses and Authorizations in full force and
effect would not, individually or in the aggregate, have a Material
Adverse Effect. Each of the Insurance Subsidiaries has fulfilled
and performed in all material respects all obligations necessary to
maintain the Insurance Licenses and Authorizations. There is no
pending or, to the Company’s knowledge, threatened action,
suit, proceeding or investigation that would, individually or in
the aggregate, result in the revocation, termination or suspension
of any of the Insurance Licenses and Authorizations or have a
Material Adverse Effect. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, none of the
Company or any of its Insurance Subsidiaries has received any
notification from any insurance regulatory authority or other
Governmental Entity to the effect that any additional Insurance
Licenses and Authorizations are needed to be obtained by either the
Company or any of its Insurance Subsidiaries.
(nn)
Statutory Financial Statements . The (i) audited
statutory financial statements of the Insurance Subsidiaries for
the year ended December 31, 2008 (the “Annual Statutory
Financial Statements”) that have been filed with the
insurance regulator of the relevant jurisdiction for each Insurance
Subsidiary have been prepared and fairly present the admitted
assets, liabilities, surplus, results of operations and cash flows
of each of the Insurance Subsidiaries at the dates and for the
periods (as the case may be) indicated, in accordance with
statutory accounting practices prescribed or permitted by the
insurance regulator of the relevant jurisdiction for such Insurance
Subsidiary consistently applied throughout such period (excepted as
specified therein), and (ii) unaudited quarterly statutory
financial statements of each of the Insurance Subsidiaries for the
periods ended March 31, 2008, June 30, 2008 and
September 30, 2008, each as filed with the
12
insurance
regulator of the relevant jurisdiction for such Insurance
Subsidiary (together with the Annual Statutory Financial
Statements, the “Statutory Financial Statements”), have
been prepared and filed with the appropriate insurance regulators
using the same statutory accounting practices applied on a basis
consistent with each of the Insurance Subsidiaries’ audited
statutory financial statements referenced in clause
(i) above.
(oo)
Insurance Reserving Practices . Except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus,
the Company and its Insurance Subsidiaries have made no material
change in their insurance reserving practices since
December 31, 2008. All insurance reserves reflected in the
Statutory Financial Statements were calculated in accordance with
applicable statutory accounting practices prescribed or permitted
by the insurance regulator of the relevant jurisdiction and
generally accepted actuarial methodologies.
(pp)
Reinsurance . All reinsurance treaties, contracts and
arrangements to which any Insurance Subsidiary is a party are in
full force and effect and no Insurance Subsidiary is (nor, to the
knowledge of the Company, is any counterparty) in violation of, or
in default in the performance, observance or fulfillment of, any
obligation, agreement, covenant or condition contained therein,
except for any such violations or defaults that, individually or in
the aggregate, would not result in a Material Adverse Effect. To
the knowledge of the Company, no Insurance Subsidiary has received
any notice that any of the other parties to such treaties,
contracts or arrangements intends not to, or will be unable to,
perform such treaty, contract or arrangement in any material
respect.
(qq)
Rating . Except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus, no “nationally
recognized statistical rating organization”, as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act, has (i) imposed (or has informed the Company or any of
its subsidiaries, that it has considered imposing) any condition
(financial or otherwise) on the Company’s retaining any
rating assigned to the Company or any of its subsidiaries or to any
securities of the Company or any of its subsidiaries,
(ii) indicated to the Company or any of its subsidiaries that
it is considering any downgrading in or withdrawal of the rating of
any debt securities or preferred stock of the Company or any of its
subsidiaries or the ratings assigned to any of its Insurance
Subsidiaries’ financial strength or claims-paying (or
equivalent) ability, or (iii) made any public announcement
that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company or
any of its subsidiaries or its rating of the financial strength or
claims-paying (or equivalent) ability of any of its Insurance
Subsidiaries (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible
downgrading or withdrawal, of such rating).
(rr)
No Unlawful Contributions or Other Payments . Neither the
Company nor any of its subsidiaries nor, to the Company’s
knowledge, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
13
(ss)
No Conflict with Money Laundering Laws . The operations of
the Company and its subsidiaries are and have been conducted at all
times in compliance in all material respects 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 applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering
Laws”). No action, suit or proceeding by or before any
Governmental Entity involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the Company’s knowledge, threatened.
(tt)
No Conflict with OFAC Laws . Neither the Company nor any of
its subsidiaries nor, to the Company’s knowledge, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”). The Company will not
directly or indirectly use the proceeds from the sale of the Notes,
or lend, contribute or otherwise make available such proceeds, to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(uu)
ERISA Compliance . Except for events that would not result
in a Material Adverse Effect, none of the following events has
occurred or exists: (i) a failure to fulfill the obligations,
if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), and the regulations and published
interpretations thereunder with respect to a Plan, determined
without regard to any waiver of such obligations or extension of
any amortization period; (ii) an audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension
Benefit Guaranty Corporation or any other federal or state
governmental agency or any foreign regulatory agency with respect
to the employment or compensation of employees by the Company or
any of its subsidiaries; or (iii) any breach of any
contractual obligation, or any violation of law or applicable
qualification standards, with respect to the employment or
compensation of employees by the Company or any of its
subsidiaries. Except for events that would not result in a Material
Adverse Effect, none of the following events has occurred or is
reasonably likely to occur: (1) a material increase in the
aggregate amount of contributions required to be made to all Plans
in the current fiscal year of the Company and its subsidiaries
compared to the amount of such contributions made in the Company
and its subsidiaries’ most recently completed fiscal year;
(2) a material increase in the Company and its subsidiaries’
“accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards
106) compared to the amount of such obligations in the Company and
its subsidiaries’ most recently completed fiscal year;
(3) any event or condition giving rise to a liability under
Title IV of ERISA; or (4) the filing of a claim by one or more
employees or former employees of the Company or any of its
subsidiaries related to its or their employment. For purposes of
this paragraph, the term “Plan” means a plan (within
the meaning of Section 3(3) of ERISA) subject to Title IV of
ERISA with respect to which the Company or any of its subsidiaries
may have any liability.
(vv)
Brokers . Except as otherwise disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, there is no
broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or other fee or
commission as a result of any transactions contemplated by this
Agreement.
(ww)
Sarbanes-Oxley Compliance . There is and has been no failure
on the part of the Company and any of the Company’s directors
or officers, in their capacities as such, to comply
14
in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(xx)
Statistical and Market Related Data . Nothing has come to
the attention of the Company or any of its subsidiaries that has
caused it or them to believe that any of the statistical and
market-related data included in the Registration Statement, the
Disclosure Package and the Prospectus is not based on or derived
from sources that are reliable or is not accurate in all material
respects
Any
certificate signed by an officer of the Company and delivered to
the Representative or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the
Notes.
(a)
The Firm Notes . The Company agrees to issue and sell to the
several Underwriters the Firm Notes upon the terms herein set
forth. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and
not jointly, to purchase from the Company the respective aggregate
principal amount of Firm Notes set forth opposite their names on
Schedule A . The purchase price per Firm Note to be
paid by the several Underwriters to the Company shall be 97.25% of
the aggregate principal amount thereof.
(b)
The Closing Date . Delivery of the Firm Notes to be
purchased by the Underwriters and payment therefor shall be made at
the offices of Sidley Austin llp , 787 Seventh Avenue, New
York, New York 10019 (or such other place as may be agreed to by
the Company and the Representative) at 9:00 a.m., New York time, on
April 29, 2009 or such other time and date not later than 1:30
p.m., New York time, on April 29, 2009 as the Representative
shall designate by notice to the Company (the time and date of such
closing are called the “Closing Date”).
(c)
The Optional Notes; any Subsequent Closing Date . In
addition, on the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Company hereby grants an option to
the several Underwriters to purchase, severally and not jointly,
the Optional Notes from the Company at the same price as the
purchase price per Firm Note to be paid by the Underwriters for the
Firm Notes. The option granted hereunder may be exercised at any
time and from time to time upon notice by the Representative to the
Company, which notice may be given at any time within 30 days
from the date of this Agreement. Such notice shall set forth
(i) the aggregate principal amount (which shall be an integral
multiple of $1,000) of Optional Notes as to which the Underwriters
are exercising the option, (ii) the names and denominations in
which the Optional Notes are to be registered and (iii) the
time, date and place at which such Optional Notes will be delivered
(which time and date may be simultaneous with, but not earlier
than, the Closing Date; and in such case the term “Closing
Date” shall refer to the time and date of delivery of the
Firm Notes and the Optional Notes). Each time and date of delivery,
if subsequent to the Closing Date, is called a “Subsequent
Closing Date” and shall be determined by the Representative
and shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. If any
Optional Notes are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the aggregate principal
amount of Optional Notes (subject to such adjustments to eliminate
fractional amounts as the Representative may determine) that bears
the same proportion to the total aggregate principal amount of
Optional Notes to
15
be purchased as
the aggregate principal amount of Firm Notes set forth on
Schedule A opposite the name of such Underwriter bears to
the total aggregate principal amount of Firm Notes.
(d)
Payment for the Notes . Payment for the Notes shall be made
at the Closing Date (and, if applicable, at any Subsequent Closing
Date) by wire transfer of immediately available funds to the order
of the Company.
It
is understood that the Representative has been authorized, for its
own account and the accounts of the several Underwriters, to accept
de
|
