Exhibit 2
UNDERWRITING
AGREEMENT
United States Steel
Corporation
23,600,000 Shares of Common Stock,
Par Value $1.00 Per Share
April 28, 2009
J.P. Morgan Securities
Inc.
Morgan Stanley & Co.
Incorporated
As Representatives of the
several Underwriters
listed
in Schedule 1
hereto
c/o J.P. Morgan Securities
Inc.
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
United States Steel Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1 hereto
(the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of 23,600,000 shares of common stock, par value $1.00 per share, of
the Company (the “Underwritten Shares”) and, at the
option of the Underwriters, up to an additional 3,540,000 shares of
common stock of the Company (the “Option Shares”). The
Underwritten Shares and the Option Shares are herein referred to as
the “Shares”. The shares of common stock of the Company
to be outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock”. The Stock, including
the Shares, will have attached thereto rights (the
“Rights”) to purchase Series A Junior Preferred Stock,
no par value. The Rights are to be issued pursuant to a Rights
Agreement (the “Rights Agreement”), effective as of
December 31, 2001, between the Company and BNY Mellon
Shareowner Services as Rights Agent.
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Shares, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3 (No. 333-141080),
including a prospectus (the “Basic Prospectus”),
relating to the Shares. The Company has also filed, or proposes to
file, with the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Shares
(the “Prospectus Supplement”). The registration
statement, as amended at the time of this Agreement, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement
at the time of its effectiveness, is referred to herein as the
“Registration Statement”; and as used
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herein, the term “Prospectus” means
the Basic Prospectus included in the Registration Statement (and
any amendments thereto) as supplemented by the prospectus
supplement specifically relating to the Shares in the form first
used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of
sales of the Shares and the term “Preliminary
Prospectus” means the preliminary prospectus supplement
specifically relating to the Shares together with the Basic
Prospectus. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement
and the Prospectus. References herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein. The terms
“supplement,” “amendment” and
“amend” as used herein with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (the
“Exchange Act”) subsequent to the date of this
Agreement which are deemed to be incorporated by reference therein.
For purposes of this Agreement, the term “Effective
Time” means the effective date of the Registration Statement
with respect to the offering of the Shares, as determined for the
Company pursuant to Section 11 of the Securities Act and
Item 512 of Regulation S-K, as applicable.
At or prior to the time when the
first sale of the Shares is made (the “Time of Sale”),
the Company will prepare certain information (collectively, the
“Time of Sale Information”), which includes a
Preliminary Prospectus, dated April 27, 2009, and each
“free writing prospectus” (as defined pursuant to Rule
405 of the Securities Act) identified in Schedule 2
hereto.
2. Purchase of the Shares by the
Underwriters .
(a) The Company agrees to issue and
sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price per share (the “Purchase
Price”) of $24.3525. The Company will not be obligated to
deliver any of the Shares except upon payment for all Shares to be
purchased as provided herein.
In addition, the Company hereby
grants an option to the several Underwriters as provided in this
Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, to purchase, severally
and not jointly, from the Company the Option Shares at the Purchase
Price less an amount per share equal to any dividends or
distributions declared by the Company and payable on the
Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be
purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the
same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of
such Underwriter (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of
Underwritten Shares being purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate
any fractional Shares as the Representatives in its sole discretion
shall make.
The Underwriters may exercise the
option to purchase Option Shares at any time in whole, or from time
to time in part, on or before the thirtieth day following the date
of the Prospectus Supplement, by written notice from the
Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option
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Shares are to be delivered and paid for, which
may be the same date and time as the Closing Date (as hereinafter
defined) but shall not be earlier than the Closing Date or later
than the fifth full business day (as hereinafter defined) after the
date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 9 hereof). Any such
notice shall be given at least two business days prior to the date
and time of delivery specified therein.
(b) The Company understands that the
Underwriters intend to make a public offering of the Shares as soon
after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Shares on
the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or
through any affiliate of an Underwriter.
(c) Payment for and delivery of the
Underwritten Shares will be made at the offices of Simpson
Thacher & Bartlett LLP at 10:00 a.m., New York City time,
on May 4, 2009, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing
or, in the case of the Option Shares, on the date and at the time
and place specified by the Representatives in the written notice of
the Underwriters’ election to purchase such Option Shares.
The time and date of such payment and delivery of the Underwritten
Shares is referred to herein as the “Closing Date”, and
the time and date of such payment and delivery for the Option
Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date”.
(d) Payment for the Shares shall be
made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representatives against
delivery to the Representatives for the respective accounts of the
several Underwriters of the Shares to be purchased on such date or
the Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”)
unless the Representatives shall otherwise instruct. The
certificates for the Shares will be made available for inspection
and packaging by the Representatives at the office of DTC or its
designated custodian not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(e) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person with respect to any such offering. Additionally,
no such Underwriter is advising the Company or any other person as
to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and such Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by such Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) Registration Statement and
Prospectus. The Registration Statement has become effective
under the Securities Act. The Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the
Commission not earlier than
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three years prior to the date hereof; and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. The Company has not received any order
suspending the effectiveness of the Registration Statement by the
Commission and has not received notice of any proceeding for that
purpose or notice of any action instituted pursuant to
Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the
Commission; as of the Effective Time, the Registration Statement
complied, and as of the date of any amendment thereto will comply,
in all material respects with the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively the “Trust Indenture Act”) and the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto, the Prospectus
did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, the Prospectus will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes
the Statement of Eligibility and Qualification (Form T-1) of the
Trustee under the Trust Indenture Act or (ii) any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in the Registration Statement and the Prospectus and any
amendment or supplement thereto.
(b) Time of Sale Information.
The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date and as of the Additional Closing Date, as the case
may be, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information. No statement of material fact
included in the Prospectus that is required to be included in the
Time of Sale Information has been omitted from the Time of Sale
Information and no statement of material fact included in the Time
of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(c) Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i),
(ii) and (iii) of this Section 3(c)), an
“Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act, (ii) the Preliminary Prospectus,
(iii) the Prospectus, (iv) the documents listed on
Schedule 2 hereto and (v) any electronic road show or any
other written communications, in each case approved in writing in
advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or
filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the
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Company makes no representation and warranty
with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, when
filed with the Commission, conformed or will conform, as the case
may be, in all material respects with the requirements of the
Exchange Act and did not and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) Company Organization and Good
Standing. The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Time of
Sale Information and the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect upon the
financial condition, business, properties or results of operations
of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”).
(f) Subsidiary Organization and
Good Standing. Each subsidiary of the Company listed on Annex A
(each, a “Designated Subsidiary”) has been duly
incorporated or otherwise organized and is an existing corporation,
limited liability company or other business entity in good standing
under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate, limited
liability company and other) to own its properties and conduct its
business as described in the Time of Sale Information and the
Prospectus; and each Designated Subsidiary of the Company is duly
qualified to do business as a foreign corporation or other business
entity in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify
would not reasonably be expected to have a Material Adverse Effect;
all of the issued and outstanding capital stock or other equity
securities of each Designated Subsidiary of the Company have been
duly authorized and are validly issued, fully paid and
nonassessable; and the shares of capital stock or other equity
securities of each Designated Subsidiary owned by the Company,
directly or through subsidiaries, are owned free from liens,
encumbrances and defects, except such liens, encumbrances and
defects that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The
entities listed on Annex A hereto include every subsidiary of the
Company that is a “significant subsidiary” (as such
term is defined in Rule 1-02 of Regulation S-X) of the
Company.
(g) Capitalization. All
outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable
and are not subject to any pre-emptive or similar rights. The
Company has an authorized capitalization as of March 31, 2009
as set forth in the Registration Statement, the Time of Sale
Information and the Prospectus under the heading
“Capitalization.” Except as described in or expressly
contemplated by the Time of Sale Information and the Prospectus,
there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock
or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Time of Sale Information and the Prospectus.
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(h) No Broker’s Fees.
Except as disclosed in the Time of Sale Information and the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection
with this offering.
(i) No Registration Rights .
There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require
the Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or with any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
(j) No Consents Required. No
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or
the issuance and sale of the Shares by the Company, except such
(i) as have been obtained and made under the Securities Act
and (ii) as may be required under state securities laws and
except for such consents, approvals, authorizations, orders or
filings the failure of which to obtain or make would not reasonably
be expected to have a Material Adverse Effect.
(k) No Conflicts. The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and compliance by
the Company with the terms thereof and the consummation of the
transactions contemplated by this Agreement, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule,
regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any Designated Subsidiary of the Company or any of their
properties, (ii) any agreement or instrument to which the
Company or any such Designated Subsidiary is a party or by which
the Company or any such Designated Subsidiary is bound or to which
any of the properties of the Company or any such Designated
Subsidiary is subject or (iii) the charter or by-laws of the
Company or any such Designated Subsidiary.
(l) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby has been duly and
validly taken.
(m) Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by
the Company.
(n) No Violation or Default.
Neither the Company nor any of the Designated Subsidiaries is
(i) in violation of its respective charter or by-laws or other
organizational documents, (ii) in default in the performance
of any obligation, agreement, covenant or condition contained in
any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any Designated
Subsidiaries is a party or by which the Company or any Designated
Subsidiaries or their respective property is bound, or
(iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except for such defaults and
violations in the case of these clauses (ii) and
(iii) that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
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(o) Title to Real and Personal
Property . Except as disclosed in the Time of Sale Information
and the Prospectus, the Company and the Designated Subsidiaries
have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens,
encumbrances and defects, except such liens, encumbrances and
defects that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
except as disclosed in the Time of Sale Information and the
Prospectus, the Company and its subsidiaries hold any leased real
or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the business of the
Company and its subsidiaries, taken as a whole. The Company and its
subsidiaries own or lease all properties and assets necessary to
conduct their business as described in the Time of Sale Information
and the Prospectus.
(p) Licenses and Permits. The
Company and the Designated Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct their business
as described in the Time of Sale Information and the Prospectus and
have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any
Designated Subsidiary, would reasonably be expected to have a
Material Adverse Effect.
(q) No Labor Disputes. Except
as disclosed in the Registration Statement or Prospectus, no labor
dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent that would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(r) Title to Intellectual
Property . The Company and the Designated Subsidiaries own,
possess or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual
property (collectively, “intellectual property rights”)
necessary to conduct its business as described in the Time of Sale
Information and the Prospectus, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
Designated Subsidiaries, would reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(s) Compliance With Environmental
Laws. Except as disclosed in the Time of Sale Information and
the Prospectus, neither the Company nor any of its subsidiaries is
in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates
any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect; and the Company is not aware of any pending investigation
which would reasonably be expected to lead to such a
claim.
(t) Legal Proceedings. Except
as described in the Time of Sale Information and the Prospectus,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Shares; and,
to the Company’s knowledge, no such actions, suits or
proceedings are threatened.
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(u) Financial Statements of the
Company. The financial statements of the Company and the
related notes thereto included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Time of Sale Information and
the Prospectus, such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
covered thereby, and the supporting schedules included in the
Registration Statement present fairly the information required to
be stated therein; and the other financial information of the
Company included in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the
information shown thereby.
(v) Taxes. The Company and
its Designated Subsidiaries have timely filed all material federal,
state, local and foreign income tax returns that have been required
to be filed and have paid all taxes indicated by said returns and
all assessments received by any of them to the extent that such
material taxes have become due and are not being contested in good
faith in appropriate proceedings. All material tax liabilities have
been adequately provided for in the financial statements of the
Company.
(w) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Time of
Sale Information and the Prospectus, (i) there has not been
any change in the capital stock or long term debt of the Company or
any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company
on any class of capital stock, or any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial
position, results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries
taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case of
(i), (ii) and (iii) of this Section 3(w) as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(x) Reporting Requirements.
The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(y) Independent Accountants .
PricewaterhouseCoopers LLP, which has audited certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act.
(z) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement, the Time of Sale Information and the
Prospectus and that is not so described.
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(aa) Compliance With ERISA.
Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates for
employees or former employees of the Company and its affiliates has
been maintained in compliance in all material respects with its
terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”);
no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, has occurred with
respect to any such plan excluding transactions effected pursuant
to a statutory or administrative exemption; and for each such plan
that is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and, except as otherwise
disclosed in the Time of Sale Information and the Prospectus, the
fair market value of the assets of each such plan (excluding for
these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined
based on actuarial assumptions and methods that are compliant with
the requirements of Code Section 430(h) and regulations
thereunder; and neither the Company nor any of its affiliates has
incurred, or reasonably expects to incur, any liability under Title
IV of ERISA in respect of any Plan “or multiemployer
plan” within the meaning of Section 4001(a)(3) of ERISA,
other than liability for the payment of required PBGC insurance
premiums under Section 4007 of ERISA.
(bb) Disclosure Controls .
The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. As of the
date of the Time of Sale Information and the Prospectus, the
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(cc) Accounting Controls. The
Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the
supervision of their respective principal executive and principal
financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles 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 differences. Except
as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no material weaknesses in
the Company’s internal controls over financial
reporting.
(dd) Sarbanes-Oxley Act .
There is and has been no failure on the part of the Company or to
the Company’s knowledge, any of the Company’s directors
or officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and
906 related to certifications.
9
(ee) No Unlawful Payments.
Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ff) Compliance 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 jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
(gg) Compliance with OFAC.
None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not, directly or
indirectly, knowingly use the proceeds of the offering of the
Shares hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(hh) No Stabilization. The
Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
(ii) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Time of Sale Information and the Prospectus, will
not be an “investment company” as defined in the
Investment Company Act of 1940.
(jj) Status under the Securities
Act . The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the
Securities Act in connection with the offering of the
Shares.
(kk) Statistical and Market
Data . Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the
Time of Sale Information and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(ll) Forward-Looking
Statements . No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of
the Exchange Act) contained in the Registration Statement, the Time
of Sale Information or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
10
(mm) Stock Options. 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 intended to qualify as an
“incentive stock option” under Section 422 of 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 a
duly 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 New
York Stock Exchange and any other exchange on which Company
securities are traded, and (iv) each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company 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 results of operations or
prospects.
(nn) The Shares. The Shares
to be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered and paid for as provided
herein, will be duly and validly issued, will be fully paid and
non-assessable and will conform in all material respects to the
descriptions thereof in the Registration Statement, the Time of
Sale Information and the Prospectus; and the issuance of the Shares
is not subject to any preemptive or similar rights; the Rights
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors’
rights generally or by equitable principles relating to
enforceability; and the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be
validly issued, and the Series A Junior Preferred Stock, no par
value, has been duly authorized by the Company and validly reserved
for issuance upon the exercise in accordance with the terms of the
Rights Agreement and will be validly issued, fully paid and
non-assessable.
(oo) NYSE Listing . The
outstanding shares of Common Stock are listed on The New York Stock
Exchange (the “NYSE”) and the Company will apply to
have the Shares approved for listing on the NYSE.
4. Further Agreements of the
Company . The Company covenants and agrees with each
Underwriter that:
(a) Filings with the
Commission. The Company will (i) pay the registration fees
for this offering within the time period required by Rule
456(b)1(i) under the Securities Act (without giving effect to the
proviso therein) and in any event prior to the Closing Date and
(ii) file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to Rule 424 under the
Securities Act not later than the close of business on the second
business day following the date of determination of the public
offering price of the Securities or, if applicable, such earlier
time as may be required by Rule 424(b) and Rule 430A, 430B or 430C
under the Securities Act. The Company will file any Issuer Free
Writing Prospectus (including the Pricing Term Sheet substantially
in the form of Schedule 3 hereto) to the extent required by Rule
433 under the Securities Act, and the Company will furnish copies
of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York
City prior to 10:00 A.M., New York City time, on the business day
next succeeding the date of this Agreement in such quantities as
the Representatives may reasonably request.
11
(b) Delivery of Copies. The
Company will deliver, without charge, to each Underwriter
(A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto, in each case including
all exhibits and consents filed therewith and (B) during the
Prospectus Delivery Period (as hereinafter defined), as many copies
of the Prospectus (including all amendments and supplements thereto
and documents incorporated by reference therein) and each Issuer
Free Writing Prospectus (if applicable) as the Representatives may
reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first
date of the public offering of the Shares as in the opinion of
counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or would be required to be
delivered but for Rule 172 under the Securities Act) in connection
with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplement;
Issuer Free Writing Prospectuses. In connection with the
transactions contemplated by the Agreement, before making,
preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Prospectus, the
Company will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus,
amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to
which the Representatives reasonably object.
(d) Notice to the
Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes
effective; (ii) when any supplement to the Prospectus, any
amendment to the Prospectus or any Issuer Free Writing Prospectus
has been filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from
the Commission relating to the Registration Statement or any other
request by the Commission for any additional information;
(iv) upon receipt of notice of the issuance by the Commission
of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of
any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (v) of the occurrence of any event within
the Prospectus Delivery Period as a result of which the Prospectus,
the Time of Sale Information or any Issuer Free Writing Prospectus
as then amended or supplemented would include any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; (vi) of the receipt by the Company
of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and
(vii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Shares for offer and
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use all
reasonable efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification of the Shares
and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Time of Sale Information.
If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of
Sale Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading or (ii)
12
it is necessary to amend or supplement the Time
of Sale Information to comply with applicable law, the Company will
immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) of this Section 4, file
with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Time of Sale
Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the
light of the circumstances, be misleading or so that the Time of
Sale Information will comply with applicable law.
(f) Ongoing Compliance. If
during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with applicable law, the
Company will immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) of this
Section 4, file with the Commission and furnish to the
Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with applicable
law.
(g) Blue Sky Compliance. The
Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such U. S. jurisdictions as the
Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of
the Shares; provided that the Company shall not be required
to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if
it is not otherwise so subject.
(h) Earning Statement. The
Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement
that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the
Registration Statement.
(i) Use of Proceeds. The
Company will apply the net proceeds from the sale of the Shares as
described in the Time of Sale Information and the Prospectus under
the heading “Use of proceeds”.
(j) No Stabilization. The
Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Stock.
(k) Record Retention . The
Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is
not filed with the Commission for three years after the Closing
Date in accordance with Rule 433 under the Securities
Act.
(l) Clear Market. For a
period of 90 days after the date of the Prospectus, the Company
will not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other
13
agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise, without the prior
written consent of J.P. Morgan Securities Inc. and Morgan
Stanley & Co. Incorporated, other than: (A) the
Shares to be sold hereunder, (B) the issuance of the 4.00%
Convertible Senior Notes due 2014 by the Company concurrently
herewith pursuant to an Underwriting Agreement, dated the date
hereof, between J.P. Morgan Securities and Morgan
Stanley & Co. Incorporated, as representatives of the
several underwriters named therein, (C) the grant of options,
awards of restricted stock and restricted stock units or the
issuance of shares of Common Stock to employees or directors by the
Company in the ordinary course of business or pursuant to any of
the Company’s employee plans existing on the date of this
Agreement, including, but
