Exhibit 1.1
Dell Inc.
$400,000,000
3.375% Notes due
2012
$600,000,000
5.875% Notes due
2019
UNDERWRITING
AGREEMENT
June 10, 2009
June 10, 2009
BANC OF AMERICA SECURITIES
LLC
DEUTSCHE BANK SECURITIES INC.
HSBC SECURITIES (USA) INC.
As Representatives of the several
Underwriters
c/o BANC OF AMERICA SECURITIES LLC
One Bryant Park
New York, NY 10036
Ladies and Gentlemen:
Introductory.
Dell Inc., a Delaware corporation
(the “ Company ”), proposes to issue and sell to
the several underwriters named in Schedule A (the “
Underwriters ”), acting severally and not jointly, the
respective amounts set forth in such Schedule A of $400,000,000
aggregate principal amount of the Company’s 3.375% Notes due
2012 (the “ 2012 Notes ”) and $600,000,000
aggregate principal amount of the Company’s 5.875% Notes due
2019 (the “ 2019 Notes ” and together with the
2012 Notes, the “ Notes ”). Banc of America
Securities LLC, Deutsche Bank Securities Inc. and HSBC Securities
(USA) Inc. have agreed to act as representatives of the several
Underwriters (in such capacity, the “ Representatives
”) in connection with the offering and sale of the
Notes.
The Notes will be issued pursuant to
an indenture, dated as of April 6, 2009 (the “ Base
Indenture ”), between the Company and The Bank of New
York Mellon Trust Company, N.A., as trustee (the “
Trustee ”). Certain terms of the Notes will be
established pursuant to a supplemental indenture (the “
Supplemental Indenture ”) to the Base Indenture
(together with the Base Indenture, the “ Indenture
”). The Notes will be issued in book-entry form in the name
of Cede & Co., as nominee of The Depository Trust Company
(the “ Depositary ”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as
defined in Section 2 below) (the “ DTC Agreement
”), among the Company, the Trustee and the
Depositary.
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”) a registration statement on Form S-3
(File No. 333-155041), which contains a base prospectus (the
“ Base Prospectus ”), to be used in connection
with the public offering and sale of debt securities, including the
Notes, and other securities of the Company under the Securities Act
of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Securities Act
”), and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act. Such registration
statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under
the Securities Act, including any required information deemed to be
a part thereof at the time of effectiveness pursuant to
Rule 430B under the Securities Act, is called the “
Registration Statement .” The term “
Prospectus ” shall mean the final prospectus
supplement relating to the Notes, together with the Base
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Prospectus, that is first filed pursuant to
Rule 424(b) after the date and time that this Agreement is
executed (the “ Execution Time ”) by the parties
hereto. The term “ Preliminary Prospectus ”
shall mean any preliminary prospectus supplement relating to the
Notes, together with the Base Prospectus, that is first filed with
the Commission pursuant to Rule 424(b). Any reference herein to the
Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
that are or are deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act
prior to 4 p.m., New York City time, on June 10, 2009 (the
“ Initial Sale Time ”). All references in this
Agreement to the Registration Statement, the Preliminary
Prospectus, the Prospectus, or any amendments or supplements to any
of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“ EDGAR ”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary
Prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Preliminary Prospectus, as the
case may be, prior to the Initial Sale Time; and all references in
this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or the Preliminary Prospectus shall be
deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “ Exchange
Act ”), which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or the
Preliminary Prospectus, as the case may be, after the Initial Sale
Time.
The Company hereby confirms its
agreements with the Underwriters as follows:
S ECTION 1. Representations and Warranties of
the Company.
The Company hereby represents,
warrants and covenants to each Underwriter as of the date hereof,
as of the Initial Sale Time and as of the Closing Date (in each
case, a “ Representation Date ”), as
follows:
a) Compliance with Registration
Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement
has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated or threatened by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
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At the respective times the
Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will
comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated thereunder (the “
Trust Indenture Act ”), and (ii) 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 to
make the statements therein not misleading. At the date of the
Prospectus and at the Closing Date, neither the Prospectus nor any
amendments or supplements thereto included or will include an
untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
any post-effective amendment or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with
information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein,
it being understood and agreed that the only such information
furnished by any Underwriter through the Representatives consists
of the information described as such in Section 8
hereof.
Each Preliminary Prospectus and the
Prospectus, at the time each was filed with the SEC, complied in
all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of the Notes will, at the time of
such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
b) Disclosure Package. The
term “ Disclosure Package ” shall mean
(i) the Preliminary Prospectus dated June 10, 2009,
(ii) the issuer free writing prospectuses as defined in
Rule 433 of the Securities Act (each, an “ Issuer
Free Writing Prospectus ”), if any, identified in Annex I
hereto and (iii) any other free writing prospectus that the
parties hereto shall hereafter expressly agree in writing to treat
as part of the Disclosure Package. As of the Initial Sale 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. 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 any
Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
c) Incorporated Documents .
The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus (i) at the time they were or hereafter are
filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and
(ii) when read together with the other information in the
Disclosure Package, at the Initial Sale Time, and when read
together with the other information in the Prospectus,
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at the date of the Prospectus and at the Closing
Date, did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
d) Company is a Well-Known
Seasoned Issuer . (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer
relating to the Notes in reliance on the exemption of Rule 163
of the Securities Act, and (iv) as of the Execution Time, the
Company was and is a “well known seasoned issuer” as
defined in Rule 405 of the Securities Act. The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405 of the Securities
Act, that automatically became effective not more than three years
prior to the Execution Time; the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the
Securities Act objecting to use of the automatic shelf registration
statement form and the Company has not otherwise ceased to be
eligible to use the automatic shelf registration form.
e) Company is not an Ineligible
Issuer . (i) At the time of filing the Registration
Statement 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 of the Securities Act), without taking account
of any determination by the Commission pursuant to Rule 405 of the
Securities Act that it is not necessary that the Company be
considered an Ineligible Issuer.
f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the offering of Notes under this Agreement or until any earlier
date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
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g) Distribution of Offering
Material By the Company. The Company has not distributed and
will not distribute, prior to the later of the Closing Date and the
completion of the Underwriters’ distribution of the Notes,
any offering material in connection with the offering and sale of
the Notes other than the Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus reviewed and consented to by the
Representatives and included in Annex I hereto, the Registration
Statement or any electronic road show or other written
communications reviewed and consented to by the Representatives
(collectively, “ Company Additional Written
Communication ”). Each such Company Additional Written
Communication, when taken together with the Disclosure Package, did
not, and at the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that this representation, warranty and agreement
shall not apply to statements in or omissions from each such
Company Additional Written Communication made in reliance upon and
in conformity with information furnished to the Company in writing
by any Underwriter through the Representatives expressly for use in
any Company Additional Written Communication, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
h) No Applicable Registration or
Other Similar Rights. There are no persons with registration or
other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights
as have been duly waived.
i) The Underwriting
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
j) Authorization of the
Indenture . The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery by the Trustee) will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforcement is sought
in a proceeding at law or in equity).
k) Authorization of the
Notes. The Notes to be purchased by the Underwriters from the
Company are substantially in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant
to this Agreement and the Indenture and, at the Closing Date, will
have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against
payment of the purchase price therefor, will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles
(regardless of whether enforcement is sought in a proceeding at law
or in equity), and will be entitled to the benefits of the
Indenture.
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l) Description of the Notes and
the Indenture. The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus.
m) Accuracy of Statements in
Prospectus. The statements in each of the Preliminary
Prospectus and the Prospectus under the captions “Description
of Notes,” “Description of Debt Securities” and
“Material United States Federal Income 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.
n) No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given
in the Disclosure Package, (i) neither the Company nor any of
its subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, except for losses or
interferences that would not, individually or in the aggregate,
have a Material Adverse Change (as defined below) and
(ii) there has been no change, or any development involving a
prospective change, that would reasonably be expected to result in
a material adverse change in the financial position,
stockholders’ equity or results of operations, whether or not
arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as a whole (any such
change is called a “ Material Adverse Change
”).
o) Independent Registered Public
Accountants. PricewaterhouseCoopers LLP, who have expressed
their opinion with respect to the Company’s audited financial
statements for the fiscal years ended February 2,
2007, February 1, 2008 and January 30, 2009
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus are, to the best of the
Company’s knowledge, independent public accountants with
respect to the Company as required by the Securities Act and the
Exchange Act and are, to the best of the Company’s knowledge,
an independent registered public accounting firm with the Public
Company Accounting Oversight Board.
p) Preparation of the Financial
Statements. The financial statements together with the related
notes thereto incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus present
fairly in all material respects the consolidated financial position
of the Company and its consolidated subsidiaries as of and at the
dates indicated and the results of their operations and the changes
in their cash flows for the periods specified, in each case on a
consolidated basis. Such financial statements comply in all
material respects as to form with the accounting requirements of
the Securities Act and have been prepared in conformity with
generally accepted accounting principles as applied in the United
States applied on a consistent basis throughout the periods
involved, except as otherwise noted in the related notes thereto.
No other financial statements are required to be included in the
Registration Statement. The selected financial data included in the
Preliminary Prospectus and the Prospectus present fairly
in
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all material respects the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements or, as applicable, unaudited
financial statements included in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
q) Incorporation and Good
Standing of the Company. The Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, and has corporate power and
authority to own or lease, as the case may be, and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus and to enter into and perform
its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Change.
r) Incorporation and Good
Standing of the Significant Subsidiaries. Each of the
Company’s significant subsidiaries (as defined in Rule
1-02(10) of Regulation S-X, the “ Significant
Subsidiaries ”) has been duly incorporated or formed and
is validly existing as a corporation, limited liability company,
limited partnership or foreign corporation, as the case may be, in
good standing under the laws of the jurisdiction of its
incorporation or organization, and has corporate power and
authority to own or lease, as the case may be, and operate its
properties and to conduct its business as described in the
Disclosure Package and the Prospectus, except where the failure to
be in good standing would not, individually or in the aggregate,
result in a Material Adverse Change. Each of the Significant
Subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a
Material Adverse Change. Except as otherwise disclosed in the
Disclosure Package and the Prospectus, all of the issued and
outstanding shares of capital stock or other ownership interests of
each of the Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and (except for
any qualifying shares owned by directors of a subsidiary and, in
the case of Significant Subsidiaries incorporated under the laws of
a jurisdiction other than the United States or a state thereof,
shares owned by foreign citizens or other individuals to the extent
required under the laws of such jurisdiction) are owned by the
Company, directly or through subsidiaries, free and clear of any
material security interest, mortgage, pledge, lien, encumbrance or
claim. The Company does not have any subsidiary not listed on
Exhibit 21 to the Company’s Annual Report on Form 10-K for
the fiscal year ended January 30, 2009 (the “Form
10-K”) which was required to be so listed when the Form 10-K
was filed.
s) Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals Required.
The Company’s execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby,
by the Disclosure Package and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not
result in any violation or
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default (or, with the giving of notice or lapse
of time or both, would be in default) (“ Default
”) under the certificate of incorporation, charter or by-laws
of the Company or any subsidiary, (ii) will not conflict with
or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any
indenture, mortgage, loan or credit agreement, deed of trust or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or by which
it or any of them is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject (each,
an “ Existing Instrument ”), and (iii) will
not result in any violation of any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its or their properties, except, with respect to clauses
(ii) and (iii) only, such conflicts, breaches, Defaults,
Debt Repayment Triggering Events, liens, charges, encumbrances,
requirements or violations as would not, individually or in the
aggregate, result in a Material Adverse Change. No consent,
approval, authorization or other order of, or registration or
filing with, any court or other governmental or regulatory
authority or agency is required for the Company’s execution,
delivery and performance of this Agreement or consummation of the
transactions contemplated hereby, by the Disclosure Package or by
the Prospectus, except such as have been or will be prior to or on
the Closing Date obtained or made by the Company and except for
such consents, approvals, authorizations or other orders of, or
registrations or filings under applicable state securities or blue
sky laws, or filings made after the Closing Date pursuant to the
Company’s periodic reporting obligations under the Exchange
Act, and from the Financial Industry Regulatory Authority (the
“ FINRA ”). As used herein, a “ Debt
Repayment Triggering Event ” means any event or condition
which gives, or with the giving of notice or lapse of time or both
would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
issued by the Company, the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
t) No Material Actions or
Proceedings. Except as disclosed in the Prospectus and the
Disclosure Package, there are no legal or governmental actions,
suits or proceedings pending or, to the best of the Company’s
knowledge, threatened against or affecting the Company or any of
its subsidiaries or of which any property of the Company or any of
its subsidiaries is subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, result in a Material Adverse Change.
u) Intellectual Property
Rights. The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names currently employed by them in
connection with the business now operated by them, and neither the
Company nor any or its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Change.
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v) Company Not an Investment
Company. The Company is not, and after receipt of payment for
the Notes and the application of the proceeds thereof as
contemplated under the caption “Use of Proceeds” in the
Preliminary Prospectus and the Prospectus will not be, required to
register as an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
w) No Unlawful Contributions or
Other Payments. To the knowledge of the Company, none of the
Company, any of its subsidiaries or any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that
would result in a violation by the Company or any of its
subsidiaries of the FCPA, and, to the knowledge of the Company, the
Company and its subsidiaries have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
“ FCPA ” means
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder.
x) No Conflict with Money
Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental 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 best knowledge of the Company,
threatened.
y) No Conflict with OFAC
Laws. Neither the Company nor any of its subsidiaries nor, 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. Treasury Department (“
OFAC ”); and the Company will not directly or
indirectly use the proceeds of the offering, 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.
z) Internal Controls and
Procedures. The Company maintains a system of internal control
over financial reporting (as such term is defined in Rule 13a-15(f)
of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance
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regarding the reliability of financial reporting
and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles in the
United States. Management of the Company assessed internal control
over financial reporting as of January 30, 2009, and concluded
that the Company’s internal control over financial reporting
was effective as of such date. The Company is not aware of any
material weaknesses in its internal control over financial
reporting.
aa) No Material Weakness in
Internal Controls. Since the date of the latest audited
financial statements filed with the Commission, there has been no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
bb) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
of the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been
designed to ensure that information required to be disclosed by the
Company and its subsidiaries in the reports that the Company files
or submits under the Exchange Act is accumulated and communicated
to the Company’s management; and such disclosure controls and
procedures were effective as of January 30, 2009.
Any certificate signed by an officer
of the Company and delivered to the Representatives or to counsel
for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters set
forth therein.
S ECTION 2. Purchase, Sale and Delivery of the
Notes.
a) The Notes. The Company
agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein
set forth, the Underwriters agree, severally and not jointly, to
purchase from the Company the aggregate principal amount of the
2012 Notes set forth opposite their names on Schedule A at a
purchase price of 99.682% of the principal amount of the 2012
Notes, plus accrued interest, if any, from June 15, 2009 to
the Closing Date, payable on the Closing Date and the aggregate
principal amount of the 2019 Notes set forth opposite their names
on Schedule A at a purchase price of 99.483% of the principal
amount of the 2019 Notes, plus accrued interest, if any, from
June 15, 2009 to the Closing Date, payable on the Closing
Date.
b) The Closing Date. Delivery
of certificates for the Notes in global form to be purchased by the
Underwriters and payment therefor shall be made at the offices of
Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York,
New York, 10019 (or such other place as may be agreed to by the
Company and the Representatives) at 9:00 a.m., New York City time,
on June 15, 2009, or such other time and date as the
Underwriters and the Company shall mutually agree (the time and
date of such closing are called the “ Closing Date
”).
10
c) Public Offering of the
Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described
in the Disclosure Package and the Prospectus, their respective
portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is
advisable and practicable.
d) Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the
Company.
It is understood that the
Representatives have been authorized, for their own accounts and
for the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the
Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment
for any Notes to be purchased by any Underwriter whose funds shall
not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this
Agreement.
e) Delivery of the Notes. The
Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters
certificates for the Notes at the Closing Date, against the
irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. The
certificates for the Notes shall be in such denominations and
registered in such names and denominations as the Representatives
shall have requested at least two full business days prior to the
Closing Date and shall be made available for inspection on the
business day preceding the Closing Date at a location in New York
City, as the Representatives may designate. Time shall be of the
essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the
Underwriters.
S ECTION 3. Covenants of the
Company.
The Company covenants and agrees
with each Underwriter as follows:
a) Compliance with Securities
Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of
Rule 430B of the Securities Act, and will promptly notify the
Representatives, and confirm the notice in writing, of (i) the
effectiveness during the Prospectus Delivery Period (as defined
below) of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Preliminary Prospectus or the Prospectus, (ii) the receipt of
any comments from the Commission during the Prospectus Delivery
Period, (iii) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Preliminary Prospectus or the Prospectus or for additional
information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of
the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether
the Preliminary Prospectus and the Prospectus transmitted for
filing under Rule 424 was
11
received for filing by the Commission and, in
the event that it was not, it will promptly file such document. The
Company will use its reasonable best efforts to prevent the
issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible
moment.
b) Filing of Amendments.
During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the
opinion of counsel for the Underwriters, the Prospectus is no
longer required by law to be delivered in connection with sales of
the Notes by an Underwriter or dealer, including in circumstances
where such requirement may be satisfied pursuant to Rule 172 of the
Securities Act (the “ Prospectus Delivery Period
”), the Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration
Statement, or any amendment, supplement or revision to the
Disclosure Package or the Prospectus, whether pursuant to the
Securities Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably
object.
c) Delivery of Registration
Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge,
electronic copies or photocopies of the signed Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and electronic copies or photocopies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may
reasonably request, and the Company hereby consents to the use of
such copies for purposes permitted by the Securities Act. The
Company will furnish to each Underwriter, without charge, during
the Prospectus Delivery Period, such number of copies of the
Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
e) Continued Compliance with
Securities Laws . The Company will comply with the Securities
Act and the Exchange Act so as to permit the completion of the
distribution of the Notes as contemplated in this Agreement and in
the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period,
any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of the Underwriters or the Company,
to amend the Registration
12
Statement in order that the Registration
Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend
or supplement the Disclosure Package or the Prospectus in order
that the Disclosure Package or the Prospectus, as the case may be,
will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the Initial
Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the
opinion of either the Company or the Underwriters, at any such time
to amend the Registration Statement or amend or supplement the
Disclosure Package or the Prospectus in order to comply with the
requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and
(2) promptly prepare and file with the Commission, subject to
Section 3(b) hereof, such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement, the Disclosure Package or the Prospectus
comply with such law, and the Company will furnish to the
Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably
request.
f) Blue Sky Compliance. The
Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under
(or obtain exemptions from the application of) the state securities
or blue sky laws of those U.S. jurisdictions designated by the
Representatives, shall comply with such laws and shall continue
such qualifications, registrations and exemptions in effect so long
as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any
action that would subject it to general service of process in any
such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company
will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating
to) t
