Exhibit 1.2
UNDERWRITING AGREEMENT
$6,000,000,000
THE DOW CHEMICAL COMPANY
$1,750,000,000 7.60% Notes due 2014
$3,250,000,000 8.55% Notes due 2019
$1,000,000,000 9.40% Notes due 2039
Underwriting
Agreement
New York, New York
May 7 , 2009
Banc of America Securities
LLC
Citigroup Global Markets
Inc.
HSBC Securities (USA)
Inc.
Morgan Stanley & Co.
Incorporated
As representatives of the several
underwriters
named in Schedule I
hereto
c/o Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York,
10013
Ladies and Gentlemen:
The Dow Chemical Company, a
corporation organized under the laws of the State of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$1,750,000,000 aggregate principal amount of the Company’s
7.60% Notes due 2014 (the “Notes due 2014”),
$3,250,000,000 aggregate principal amount of the Company’s
8.55% Notes due 2019 (the “Notes due
2019”) and $1,000,000,000 aggregate principal
amount of the Company’s 9.40% Notes due 2039 (the
“Notes due 2039” and, together with the Notes due 2014
and the Notes due 2019 to be sold by the Company hereunder, the
“Company Securities”), to be issued under an indenture
(the “Indenture”) dated as of May 1, 2008, between the
Company and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “Trustee”), and the persons named in
Schedule II hereto (the “Selling Noteholders”) propose,
severally and not jointly, to sell to the several Underwriters
$1,346,968,000 aggregate principal amount of the Notes due 2019 as
more specifically set forth in Schedule II hereto (collectively,
the “Selling Noteholder Securities” and, together with
the Company Securities, the
“Securities”). Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3, which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement,
the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
On April 1, 2009, pursuant to an
Agreement and Plan of Merger dated July 10, 2008, among the
Company, Rohm and Haas Company, a Delaware corporation (“Rohm
and Haas”) and Ramses Acquisition Corp. (“Merger
Sub”), a direct, wholly owned subsidiary of the Company, the
Company completed the acquisition of Rohm and Haas through the
merger of Merger Sub with and into Rohm and Haas, with Rohm and
Haas as the surviving corporation and becoming a wholly owned
subsidiary of the Company (such transaction, the
“Acquisition”).
The Selling Noteholders are the
owners of Cumulative Perpetual Preferred Stock, Series B (the
“Preferred Securities”), of the Company and have
entered into an agreement, dated May 5, 2009 (the “Purchase
Agreement”), with the Company pursuant to which the Selling
Noteholders have agreed, among other things, to sell (the
“Preferred Securities Sale”) a portion of the Preferred
Securities in consideration for the Selling Noteholder
Securities. The aggregate principal amount of Selling
Noteholder Securities to be issued for each Preferred Security
shall be determined by dividing (x) the Original Purchase Price (as
such term is defined in the Certificate of Designations governing
such Preferred Securities) of such Preferred Security, plus accrued
and unpaid dividends and any dividends added to the Liquidation
Preference (as such term is defined in the Certificate of
Designations governing such Preferred Securities) to the Closing
Date (as defined below), by (y) the public offering price less the
underwriting discount for the Selling Noteholder Securities as set
forth on the cover page of the Final Prospectus (in each case
expressed as a percentage per Note due 2019).
1.
Representations and Warranties .
(a) The
Company represents and warrants to, and agrees with, each
Underwriter and each Selling Noteholder as of the Execution Time
and as of the Closing Date (as defined in Section 3) as set forth
below in this Section 1.
(i)
The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission an automatic
shelf registration statement, as defined in Rule 405 on Form S-3
(File No. 333-140859), including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became
effective upon filing and no notice of objection of the Commission
to the use of such Registration Statement or any post-effective
amendment thereto pursuant to Rule 40l (g)(2) under the 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 Act against the Company or related to the
offering has been initiated or, to the Company’s knowledge,
threatened by the Commission. The Company may have filed
with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each
of which has previously been
furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the
Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made
therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule
415(a)(1)(x).
(ii)
On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture
Act and the respective rules thereunder; on each Effective Date and
at the Execution Time, the Registration Statement did not and will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will 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; provided , however , that
the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
(iii) At
the Execution Time, (i) the Disclosure Package and (ii) each
electronic road show, when taken together as a whole with the
Disclosure Package, did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(iv) (i)
At the time of filing the Registration Statement, (ii) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Securities in reliance on the exemption in
Rule 163, and (iv) at the Execution Time (with such date being used
as the determination date for purposes of this clause (iv)), the
Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees
to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(v) (i)
At the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and (ii) as of the Execution Time (with such date being
used as the determination date for purposes of this clause (ii)),
the Company was not 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.
(vi) Each
Issuer Free Writing Prospectus and the final term sheet prepared
and filed pursuant to Section 5(a)(ii) hereof does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified. 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 Final Prospectus, the
Company has promptly notified or will promptly notify the
Representatives and has promptly amended or supplemented or will
promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such
conflict. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(vii) The
documents incorporated by reference in the Disclosure Package and
the Final Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act and the
rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, 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
and the Final Prospectus, 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 Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder then in effect
and 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.
(viii) The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Disclosure
Package and the Final Prospectus; the Company is duly qualified as
a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not have a material adverse effect on the
business, financial condition or results of operations of the
Company and its subsidiaries considered as a whole (a
“Material Adverse Effect”).
(ix) Union
Carbide Corporation (“UCC”) and Rohm and Haas are the
only subsidiaries of the Company that qualify as a
“significant subsidiary” under Section 1-02(w) of
Regulation S-X. Each of UCC and Rohm and Haas has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power
and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus; each of UCC and Rohm
and Haas is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not have a
Material Adverse Effect; except as otherwise disclosed in the
Disclosure Package and the Final Prospectus, all of the issued and
outstanding capital stock of each of UCC and Rohm and Haas has been
duly authorized and validly issued, is fully paid and
non-assessable and (except for shares necessary to qualify
directors or to maintain any minimum number of shareholders
required by law) is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, or claim.
(x) The
Company has outstanding capital stock as set forth in the
Disclosure Package and the Final Prospectus (except for subsequent
issuances as described in the Disclosure Package and the Final
Prospectus pursuant to employee benefit plans or pursuant to the
exercise of convertible securities or options and except for
repurchases in connection with open market or repurchase plans or
redemptions of shares of preferred stock). All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable.
(xi) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xii) The
Purchase Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and
delivery by each of the other parties thereto) constitutes the
valid and legally binding obligation of the Company enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of
creditors’ rights and to general equity
principles. The Selling Noteholder Securities have been
duly authorized for issuance pursuant to the Purchase Agreement,
when issued and delivered by the Company to the Selling Noteholders
in consideration for the sale of the Preferred Securities as
contemplated by the Purchase Agreement and authenticated by the
Trustee, will constitute valid and legally binding obligations of
the Company, will be entitled to the benefits provided by the
Indenture and will be enforceable in accordance with their terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to
or affecting the enforcement of creditors’ rights and to
general equity principles.
(xiii) The
Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, the Securities will have been
duly executed, issued and delivered and (assuming the due
authentication thereof by the Trustee) will constitute valid and
legally binding obligations of the Company, will be entitled to the
benefits provided by the Indenture and will be enforceable in
accordance with their terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of
creditors’ rights and to general equity
principles.
(xiv) The
Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery by
the Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or
other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity
principles; the Indenture has been duly qualified under the Trust
Indenture Act.
(xv) The
Indenture conforms, and the Securities will conform, in all
material respects, to the descriptions thereof contained in the
Disclosure Package and the Final Prospectus.
(xvi) The
statements in each of the Disclosure Package and the Final
Prospectus under the captions “Description of the
Notes,” “Description of Debt Securities” and
“United States Federal Tax Considerations” in each case
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present and summarize, in all material respects, the matters
referred to therein.
(xvii) The
issuance and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions therein
and herein contemplated, will not 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 of the
property or assets of the Company, UCC or Rohm and Haas pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company, UCC or Rohm
and Haas is a party or by which the Company, UCC or Rohm and Haas
is bound or to which any property or assets of the Company, UCC or
Rohm and Haas is subject, which would reasonably be expected to
have a Material Adverse Effect or affect the validity of the
Securities or the legal authority of the Company to comply with the
Securities, the Indenture, or this Agreement; nor will such action
result in any violation of the provisions of the Restated Articles
of Incorporation, as amended, or the Bylaws of the Company; nor
will such action result in a violation of any statute or any order,
rule or regulation of any court or governmental agency or body in
the United States having jurisdiction over the Company, UCC or Rohm
and Haas or any of their properties, which would reasonably be
expected to have a Material Adverse Effect or affect the validity
of the Securities or the legal authority of the Company to comply
with the Securities, the Indenture, or this Agreement.
(xviii) No
consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority
or other governmental body in the United States having jurisdiction
over the Company is required for the issuance and sale of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained under the Act
and the Trust Indenture Act and such as may be required by the
securities or Blue Sky laws of the various states and the
securities laws of any jurisdiction outside the United States in
which the Securities are offered.
(xix) Except
as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto), 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 is pending or, to the
Company’s knowledge, threatened that (i) would reasonably be
expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) would reasonably be expected to have a
Material Adverse Effect.
(xx) Since
the dates as of which information is given in the Disclosure
Package and the Final Prospectus (exclusive of any amendments or
supplements thereto after the date hereof), there has not been (i)
any material change in the capital stock (other than changes
pursuant to open market or repurchase plans or employee benefit
plans or changes resulting from the conversion or redemption of
outstanding shares of preferred stock or convertible debt) or
long-term debt of the Company and its consolidated subsidiaries
considered as a whole, or (ii) any material adverse change, in or
affecting the business, financial condition or results of
operations of the Company and its consolidated subsidiaries
considered as a whole, otherwise than, in the case of (i) or (ii)
above, as set forth or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendments or supplements
thereto after the date hereof).
(xxi) Deloitte
& Touche LLP, who has audited certain financial statements of
the Company and its consolidated subsidiaries (which do not include
Rohm and Haas and its subsidiaries) and delivered their report with
respect to the audited consolidated financial statements and
schedules of the Company and its consolidated subsidiaries (which
do not include Rohm and Haas and its subsidiaries) included or
incorporated by reference in the Disclosure Package and the Final
Prospectus, are independent registered public accountants with
respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(xxii) PricewaterhouseCoopers
LLP, who has audited certain financial statements of Rohm and Haas
and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements of Rohm
and Haas included or incorporated by reference in the Disclosure
Package and the Final Prospectus, are independent certified public
accountants with respect to Rohm and Haas under Rule 101 of the
Code of Professional Conduct of the American Institute of Certified
Public Accountants, and its rulings and interpretations.
(xxiii) The
Company’s consolidated historical financial statements and
schedules (which do not include Rohm and Haas and its subsidiaries)
incorporated by reference in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations
and cash flows of the Company as of the dates and for the periods
indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under
the caption “Prospectus Supplement Summary — Summary
Historical Financial and Other Data of Dow” and
“Selected Historical Financial and Other Data of Dow”
in the Disclosure Package and the Final Prospectus fairly present,
in all material respects, the information set forth therein on a
basis consistent with that of the Company’s audited financial
statements incorporated by reference in the Disclosure Package and
the Final Prospectus.
(xxiv) The
consolidated historical financial statements of Rohm and Haas and
its consolidated subsidiaries incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of Rohm and Haas as
of the dates and for the periods indicated, comply as to form in
all material respects with the applicable accounting requirements
of the Act and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data
set forth under the caption “Prospectus Supplement Summary
— Summary Historical Financial and Other Data of Rohm and
Haas” and “Selected Historical Financial and Other Data
of Rohm and Haas Company” in the Disclosure Package and the
Final Prospectus fairly present, in all material respects, the
information set forth therein on a basis consistent with that of
the audited financial statements of Rohm and Haas and its
consolidated subsidiaries incorporated by reference in the
Disclosure Package and the Final Prospectus.
(xxv) The
pro forma combined condensed financial information of the Company
and its consolidated subsidiaries and the related notes thereto
included in the Disclosure Package and the Final Prospectus have
been prepared in accordance with the Commission’s rules with
respect to pro forma financial information, and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances described therein. The pro forma combined
condensed financial information included in the Disclosure Package
and the Final Prospectus include assumptions that provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial
statement amounts in the pro forma combined condensed financial
information included in the Disclosure Package and the Final
Prospectus. The pro forma combined condensed financial
information included in the Disclosure Package and the Final
Prospectus complies as to form in all material respects with the
applicable requirements of Article 11 of Regulation S-X under the
Act and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of that
information.
(xxvi) 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 Disclosure Package and the Final Prospectus, will
not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(xxvii) No
material, collective labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the
Company’s knowledge, is threatened that would reasonably be
expected to have a Material Adverse Effect.
(xxviii)
Except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto), the Company and its subsidiaries are in compliance in all
material respects with all applicable laws (including all
applicable laws and regulations relating to the protection of human
health and safety, the environment, or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively
“ Environmental Laws ”)), ordinances, rules,
regulations, and requirements of governmental authorities, except
where (i) the necessity of compliance therewith is contested in
good faith by appropriate proceedings or (ii) noncompliance
therewith would not have a Material Adverse Effect.
(xxix) In
the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in
the course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). To the
Company’s knowledge, no such associated costs and liabilities
would, singly or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(xxx) Except
as would not reasonably be expected to have a Material Adverse
Effect and except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), to the Company’s knowledge, the Company
or its subsidiaries own or possess the right to use all patents,
trademarks, service marks, trade names, copyrights, patentable
inventions, trade secrets and know-how used by the Company or its
subsidiaries in, and material to, the conduct of the
Company’s and its subsidiaries’ business taken as a
whole as now conducted or as proposed in the Disclosure Package and
the Final Prospectus to be conducted (collectively, the “
Intellectual Property ”). Except as would
not otherwise reasonably be expected to have a Material Adverse
Effect and except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), there are no legal or governmental actions,
suits, proceedings or claims pending or, to the Company’s
knowledge, threatened, against the Company (i) challenging the
Company’s rights in or to any Intellectual Property, (ii)
challenging the validity or scope of any Intellectual Property
owned by the Company, or (iii) alleging that the operation of the
Company’s business as now conducted infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of a third party.
(xxxi) There
is and has been no failure in any material respects on the part of
the Company and any of the Company’s directors or officers,
in their capacities as such, to comply 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 relating to loans and
Sections 302 and 906 relating to certifications.
(xxxii) The
Company maintains a system of internal control over financial
reporting with respect to itself and its consolidated subsidiaries
sufficient to provide reasonable assurance that (i) receipts and
expenditures of the Company are made only in accordance with the
general or specific authorizations of the management or directors
of the Company; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States and
to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any material
differences. The management of the Company concluded
that such internal control over financial reporting was effective
as of December 31, 2008 and, other than as may result from the
Acquisition, there have been no changes in the Company’s
internal control over financial reporting since such date that have
materially affected, or are reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(xxxiii) The
Company maintains “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Exchange Act);
based on the evaluation of these disclosure controls and
procedures, the Company’s Chief Executive Officer and Chief
Financial Officer concluded that the Company’s disclosure
controls and procedures were effective as of March 31,
2009.
(xxxiv) The
Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
provided, however, that no such representation is made with respect
to any action undertaken by the Underwriters or the Selling
Noteholders.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
(b) Each
Selling Noteholder, severally and not jointly, represents and
warrants to, and agrees with, the Company and each Underwriter
that:
(i)
Such Selling Noteholder is the record and beneficial owner of the
number of Preferred Securities set forth opposite such Selling
Noteholder’s name on Schedule II and on the Closing Date will
be the record and beneficial owner of the aggregate principal
amounts of the Notes due 2019 set forth opposite such Selling
Noteholder’s name in Column B on Schedule II hereto (assuming
the Company delivers the Securities to the Selling Noteholders in
compliance with the Purchase Agreement), in each case free and
clear of all liens, encumbrances, equities and claims, has validly
entered into the Purchase Agreement and has full power and
authority to sell its interest in the Selling
Noteholder Securities to be received in consideration
for the sale of its Preferred Securities pursuant to the Purchase
Agreement, and, assuming that each Underwriter acquires its
interest in the Securities it has purchased from such Selling
Noteholder without notice of any adverse claim (within the meaning
of Section 8-105 of the New York Uniform Commercial Code
(“NYUCC”)), each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust
Company or other securities intermediary by making payment therefor
as provided herein, and that has had such Securities credited to
the securities account or accounts of such Underwriters maintained
with The Depository Trust Company or such other securities
intermediary will have acquired a security entitlement (within the
meaning of Section 8-102(a)(17) of the NYUCC) to such Securities
purchased by such Underwriter, and no action based on an adverse
claim (within the meaning of Section 8-105 of the NYUCC) may be
asserted against such Underwriter with respect to such
Securities.
(ii) This
Agreement has been duly authorized, executed and delivered by such
Selling Noteholder. The Purchase Agreement has been duly
authorized, executed and delivered by such Selling Noteholder and
(assuming the due authorization, execution and delivery by the
Company) constitutes the valid and legally binding obligation of
such Selling Noteholder enforceable against such Selling Noteholder
in accordance with its terms except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws of general applicability relating to or
affecting the enforcement of creditors’ rights and to general
equity principles.
(iii) Such
Selling Noteholder has not taken, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities until such Selling Noteholder shall be deemed to have
completed its participation in the distribution of the Securities
as computed in Rule 100 of Regulation M under the Exchange Act;
provided, however, that no such representation is made with respect
to any action undertaken by the Underwriters. It is
agreed that both orders and purchases by the Selling Noteholders in
connection with the offering shall not violate this clause
(iii).
(iv) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
such Selling Noteholder of the transactions contemplated herein
(including the Preferred Securities Sale), except such as may have
been obtained under the Act and the Trust Indenture Act, as may be
required by the rules of the New York Stock Exchange and the
Financial Industry Regulatory Authority, Inc. (“FINRA”)
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters and such other approvals as have
been obtained.
(v) Neither
the sale of the Securities being sold by such Selling Noteholder
nor the consummation of any other of the transactions herein
contemplated (including the Preferred Securities Sale) by such
Selling Noteholder or the fulfillment of the terms hereof by such
Selling Noteholder will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter
or by-laws (or comparable governing documents) of such Selling
Noteholder or the terms of any indenture or other agreement or
instrument to which such Selling Noteholder or any of its
subsidiaries (if applicable) is a party or bound, or any judgment,
order or decree applicable to such Selling Noteholder or any of its
subsidiaries (if applicable) of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Noteholder or any of its
subsidiaries (if applicable), other than in each case any conflict,
breach, violation or default which would not reasonably be expected
to have a material adverse effect on the ability of such Selling
Noteholder to consummate the transactions herein
contemplated.
(vi) On
each Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; at the Execution Time, the Disclosure Package did
not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will 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; provided,
however, that the representations and warranties contained in this
clause (vi) shall apply only to written information furnished in
writing to the Company or to the Underwriters by or on behalf of
such Selling
Noteholder specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of such Selling
Noteholder consists of the information described as such in Section
8(b) hereof.
Any certificate signed by any
Selling Noteholder (or any officer thereof, if applicable) and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Noteholder, as to
matters covered thereby, to each Underwriter.
2.
Purchase and Sale . Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company and the Selling Noteholders agree,
severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company and (in the case of the Notes due 2019 only) the Selling
Noteholders, at 99.088% of the principal amount thereof plus
accrued interest from May 13, 2009, with respect to the Notes due
2014, at 99.144% of the principal amount thereof plus accrued
interest from May 13, 2009, with respect to the Notes due 2019 and
at 98.687% of the principal amount thereof plus accrued interest
from May 13, 2009, with respect to the Notes due 2039, in each case
the principal amount of the Securities set forth opposite such
Underwriter’s name in Columns B, C and D, respectively, of
Schedule I hereto, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof. The
Company and the Underwriters agree that in the event the offering
of common stock (the "Equity Offering") by the Company pursuant to
the underwriting agreement, dated May 6, 2009, among the Company,
the Selling Noteholders and the several underwriters named in
Schedule III thereto (the "Equity Offering Agreement") is not
consummated, the Company agrees to sell to each Underwriter, and
each Underwriters agrees, severally and not jointly, to purchase
from the Company, on the same terms as set forth in the immediately
preceding sentence, the Securities which would have otherwise been
sold by the Selling Noteholders.
3.
Delivery and Payment . Delivery of and payment
for the Securities shall be made at 9:00 a.m., New York City time,
on May 13, 2009 or at such time on such later date not more than
three Business Days after the foregoing date as the
Representatives, the Company and the Selling Noteholders shall
mutually agree upon, which date and time may be postponed by
agreement among the Representatives, the Company and the Selling
Noteholders or as provided in Section 9 hereof (such date and time
of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the respective
aggregate purchase prices of the Securities being sold by the
Company and each of the Selling Noteholders thereof to or upon the
order of the Company and the Selling Noteholders by wire transfer
payable in same-day funds to their respective accounts specified by
each of the Company and the Selling
Noteholders. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Company will pay all applicable
state transfer taxes, if any, involved in the transfer to the
several Underwriters of the Securities to be purchased by them from
such Selling
Noteholder and the respective
Underwriters will pay any additional transfer taxes involved in
further transfers.
4.
Offering by Underwriters . It is understood that
the several Underwriters propose to offer the Securities for sale
to the public as set forth in the Final Prospectus.
5.
Agreements .
(a) The
Company agrees with the several Underwriters and the Selling
Noteholders that:
(i)
Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus unless the Company has furnished
to the Representatives a copy for their review prior to filing and
will not file any such proposed amendment or supplement to which
the Representatives reasonably object. The Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely
filing. The Company will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of any
request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its reasonable
best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as practicable the
withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using
its reasonable best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
(ii) The
Company will prepare (or cause to be prepared) a final term sheet,
containing a description of the final terms of the Securities and
the offering thereof, in the form approved by the Representatives
and attached as Schedule IV hereto and file such term sheet
pursuant to Rule 433(d) within the time required by such
Rule.
(iii) If,
at any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any
untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Representatives so that any
use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to
correct such statement or omission; and (iii) supply any amendment
or supplement to the Representatives in such quantities as the
Representatives may reasonably request.
(iv) If,
at any time when a prospectus relating to the Securities is
required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any
event occurs as a result of which the Disclosure Package or the
Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Disclosure Package or the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Disclosure Package or the
Final Prospectus, the Company promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement or new registration statement
which will correct such statement or omission or effect such
compliance, (iii) use its reasonable best efforts to have any
amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to
avoid any disruption in use of the Disclosure Package or the Final
Prospectus and (iv) supply any supplemented Disclosure Package or
Final Prospectus to the Representatives in such quantities as they
may reasonably request.
(v) As
soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings
statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158.
(vi) The
Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as
many copies of each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto
as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of
all documents relating to the offering.
(vii) The
Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions in the
United States as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other
than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
(viii) The
Company agrees that, unless it has or shall have obtained the prior
written consent of the Representatives (such consent not to be
unreasonably withheld, conditioned or delayed), and each
Underwriter, severally and not jointly, agrees with the Company
that, unless it has or shall have obtained, as the case may be, the
prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained
by the Company under Rule 433, other than a free writing prospectus
containing the information contained in the final term sheet
prepared and filed pursuant to Section 5(a)(ii) hereto; provided
that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto. Any such
free writing prospectus consented to by the Representatives or the
Company is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company agrees that (x)
it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the
Commission, legending pursuant to reasonable procedures developed
in good faith, and record keeping.
