Exhibit 1.1
$250,000,000
Laboratory Corporation of America
Holdings
5.625 % Senior Notes due 2015
UNDERWRITING
AGREEMENT
dated December 9, 2005
Banc of America Securities
LLC
Underwriting
Agreement
December 9, 2005
BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, NY 10019
As Representative of the several
Underwriters
Ladies and Gentlemen:
Introductory.
Laboratory Corporation of America
Holdings, a Delaware corporation (the “Company”),
proposes to issue and sell to the several underwriters named in
Schedule A (the “Underwriters”) $250,000,000 aggregate
principal amount of its 5.625 % Senior Notes due 2015 (the
“Securities”). Banc of America Securities LLC
(“BAS”) has agreed to act as representative of the
several Underwriters (in such capacity, the
“Representatives”) in connection with the offering and
sale of the Securities.
The Securities will be issued in
book-entry form pursuant to an indenture, to be dated as of
December 5, 2005 (the “Indenture”), between the
Company and The Bank of New York Trust Company, as trustee (the
“Trustee”).
To the extent there are no
additional Underwriters listed on Schedule I other than you, the
terms Representatives and Underwriters as used herein shall mean
you, as Underwriters. The terms Representatives and Underwriters
shall mean either the singular or plural as the context requires.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus (both, as defined herein).
Section 1. Representations
and Warranties of the Company .
The Company hereby represents,
warrants and covenants to each Underwriter as follows:
(a) Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a registration statement
on Form S-3 (File No. 333-130141), which contains a base
prospectus (the “Base Prospectus”), to be used in
connection with the public offering and sale of the Securities.
Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it
was declared effective by the Commission under the Securities Act
of 1933 and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), including any
information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the
Securities Exchange Act of 1934 and the rules and
regulations
promulgated thereunder (collectively, the
“Exchange Act”), is called the “Registration
Statement.” Any preliminary prospectus supplement to the Base
Prospectus that describes the Securities and the offering thereof
and is used prior to filing of the final Prospectus is called,
together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall mean the
final prospectus relating to the Securities that is first filed
pursuant to Rule 424(b) after the date and time that this Agreement
is executed and delivered by the parties hereto (the
“Execution Time”). Any reference herein to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act; any reference to any amendment or
supplement to any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date
of such preliminary prospectus or Prospectus, as the case may be,
under the Exchange Act, and incorporated by reference in such
preliminary prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement.
(b) Compliance with Registration
Requirements. The Registration Statement became effective under
the Securities Act upon its filing with the Commission. The Company
has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such
purpose have been instituted or are pending or, to the best
knowledge of the Company, are contemplated or threatened by the
Commission.
Each preliminary prospectus and the
Prospectus when filed complied or will comply in all material
respects with the Securities Act and the rules thereunder and, if
filed by electronic transmission pursuant to EDGAR (except as may
be permitted by Regulation S-T under the Securities Act), was or
will be identical to the copy thereof delivered to the Underwriters
for use in connection with the offer and sale of the Securities.
Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective and the Registration
Statement at the date hereof, complied and will comply in all
material respects with 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. The Prospectus, as
amended or supplemented, as of its date, at the time of any filing
pursuant to Rule 424(b) under the Securities Act and, at the
Closing Date (as defined herein), did not and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement or any post-effective
amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by
the Representatives consists of the information described as such
in Section 8 hereof. There is no contract or other document
required to be described in the Prospectus or to be filed as an
exhibit to the Registration Statement that has not been described
or filed as required.
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The documents incorporated by
reference in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable. Any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable.
(c) Disclosure Package . The
term “Disclosure Package” shall mean (i) the Base
Prospectus as supplemented by the preliminary prospectus supplement
dated December 9, 2005 relating to the Securities filed with
the Commission under Rule 424 on the date hereof, collectively, the
“Preliminary Prospectus” (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 Schedule B hereto, and (iii) any other free
writing prospectus that the parties hereto shall expressly agree in
writing to treat as part of the Disclosure Package. As of 11:40 am
(Eastern time) on the date of this Agreement (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 or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d) Company is Well-Known
Seasoned Issuer . At the time of filing the Registration
Statement, the Company was 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 initially became effective within three years
of the date hereof, and 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.
(e) Company Not Ineligible
Issuer . At the earliest time after the filing of the
Registration Statement relating to the Securities that the Company
or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Securities Act), 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 does not
include any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
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(g) Accuracy of Statements in
Prospectus. The statements in each of the Disclosure Package
and the Prospectus under the headings “Description of the
Notes,” and “Description of Securities – Debt
Securities,” and in the Company’s Form 10-K for the
year ended December 31, 2004 under the caption
“Regulation and Reimbursement” in Item 1 and under
Item 3, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(h) Distribution of Offering
Material By the Company. The Company has not distributed and
will not distribute, prior to the later of the Closing Date (as
defined herein) and the completion of the Underwriters’
distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than a
preliminary prospectus, the Prospectus, any Issuer Free Writing
Prospectus reviewed and consented to by the Representatives and
included in Schedule B hereto or the Registration
Statement.
(i) Incorporation and Good
Standing of the Company . 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 Disclosure Package 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 be so
qualified individually or in the aggregate would not have a
material adverse effect on the business, financial condition,
properties or results of operations of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”).
(j) Incorporation and Good
Standing of Subsidiaries. Each subsidiary of the Company has
been duly incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the Disclosure
Package and the Prospectus; and each subsidiary of 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 be so qualified
individually or in the aggregate would not have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and
defects.
(k) The Indenture and the
Securities . The Indenture has been duly authorized; the
Securities have been duly authorized; and assuming due
authorization, execution and delivery of the Indenture and
authentication of the Securities, in accordance with the Indenture,
by the Trustee, when the Securities are delivered and paid for
pursuant to this Agreement on the Closing Date (as defined herein),
the Indenture will have been duly executed and delivered, such
Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in
the Disclosure Package and the Prospectus; and the Indenture and
such Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
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(l) No Further Authorizations or
Approvals 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 in connection with the issuance
and sale of the Securities by the Company, except for (1) such
as have been obtained under the Securities Act and state securities
or Blue Sky laws and (2) such consents, approvals,
authorizations, orders or filings that the failure to obtain would
not individually or in the aggregate (i) have a Material
Adverse Effect or (ii) adversely affect in a material respect
the ability of the Company to perform its obligations under the
Indenture or this Agreement, or would otherwise be material in the
context of the sale of the Securities.
(m) Non-Contravention of Existing
Instruments. The execution, delivery and performance of the
Indenture and this Agreement, and the issuance and sale of the
Securities and compliance with the terms and provisions thereof
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 subsidiary of the Company or any of their
properties, or (ii) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject, or (iii) the
charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement, except in the
case of clause (i) or (ii), any such breach, violation or
default that would not (x) individually or in the aggregate
have a Material Adverse Effect or (y) prevent the consummation
of the transactions contemplated by this Agreement, the Disclosure
Package and the Prospectus in connection with the issuance and sale
of the Securities by the Company.
(n) The Underwriting
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(o) Title to Properties.
Except as disclosed in the Disclosure Package, the Company and its
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 that individually or in
the aggregate would have a Material Adverse Effect or materially
interfere with the use made or to be made thereof by them; and
except as disclosed in the Disclosure Package, 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 use made or to be made thereof by
them.
(p) All Necessary Permits,
etc. The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them 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 of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
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(q) Labor Matters. No labor
dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent that could
reasonably be expected to have a Material Adverse
Effect.
(r) Intellectual Property
Rights. The Company and its 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 the business now operated by them, 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 subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect.
(s) Compliance with Environmental
Laws. Except as disclosed in the Disclosure Package, 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 would individually or in the
aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which could reasonably be
expected to lead to such a claim.
(t) No Material Actions or
Proceedings. Except as disclosed in the Disclosure Package,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under
the Indenture or this Agreement, or which are otherwise material in
the context of the sale of the Securities; and no such actions,
suits or proceedings are threatened or, to the Company’s
knowledge, contemplated.
(u) Preparation of the Financial
Statements. The financial statements filed with the Commission
as a part of or incorporated by reference in the Registration
Statement and included or incorporated by reference in the
Disclosure Package and the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Such financial
statements and supporting schedules comply as to form with the
applicable accounting requirements of the Securities Act and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are
required to be included or incorporated by reference in the
Registration Statement. The financial data set forth in each of the
Preliminary Prospectus and the Prospectus under the caption
“Summary—Summary Consolidated Financial Data”
fairly presents the information set forth therein on a basis
consistent with that of the audited and unaudited financial
statements contained or incorporated by reference in the
Registration Statement.
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(v) No Material Adverse
Change. Except as disclosed in the Disclosure Package,
(i) since the date of the latest audited financial statements
included as part of or incorporated by reference in the Preliminary
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the financial condition, business, properties or results
of operations of the Company and its subsidiaries taken as a whole
(“Material Adverse Change”); (ii) there have been
no transactions entered into by the Company or any of its
subsidiaries which are material to the Company and its
subsidiaries, taken as a whole, other than those entered into in
the ordinary course of business or in connection with the offering
of the Securities; (iii) there has been no material change in
the capital stock of the Company or any of its subsidiaries, except
for changes occurring in connection with the offering of the
Securities or pursuant to the issuance or exercise of options
pursuant to the Company’s stock option or other employment
benefit plans described in the Disclosure Package or conversion of
outstanding securities described in the Disclosure Package; and
(iv) except as disclosed in or contemplated by the Disclosure
Package, there has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its wholly owned
subsidiaries on any class of its capital stock.
(w) Company Not an
“Investment Company”. The Company is not an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940
(the “Investment Company Act”); and the Company is not
and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in each of
the Disclosure Package and the Prospectus, will not be, an
“investment company” as defined in the Investment
Company Act.
(x) Ratios of Earnings to Fixed
Charges . The Company’s ratios of earnings to fixed
charges set forth in each of the Preliminary Prospectus and the
Prospectus under the captions “Summary—Summary
Consolidated Financial Data”, “Ratio of Earnings to
Fixed Charges”, and in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d)
of Regulation S-K under the Securities Act.
(y) Internal Controls and
Procedures. The Company maintains (i) effective internal
control over financial reporting as defined under the Exchange Act,
and (ii) a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(z) No Material Weakness in
Internal Controls. Except as disclosed in the Disclosure
Package or in any document incorporated by reference therein, since
the end of the Company’s most recent audited fiscal year,
there has been (i) no material weakness in the
Company’s
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internal control over financial reporting
(whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
Section 2 . Purchase, Sale
and Delivery of the Securities.
(a) The Securities. The
Company agrees to issue and sell to the Underwriters, severally and
not jointly, all of the Securities, and the Underwriters agree,
severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite their
names on Schedule A at a purchase price of 99.063 % of the
principal amount thereof, plus accrued interest, if any, payable on
the Closing Date (as defined herein), in each case, on the basis of
the representations, warranties and agreements herein contained,
and upon the terms, subject to the conditions thereto, herein set
forth.
(b) The Closing Date.
Delivery of certificates for the Securities in definitive form to
be purchased by the Underwriters and payment therefor shall be made
at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York 10017 at 9:00 a.m. New York time, on
December 14, 2005, or such other time and date not later than
1:30 p.m. New York time, on December 21, 2005, as the
Representatives shall designate by notice to the Company (the time
and date of such closing are called the “Closing
Date”).
(c) Payment for the
Securities. Payment for the Securities 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 account and the
accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the
Securities the Underwriters have agreed to purchase. BAS,
individually and not as the Representative of the Underwriters, may
(but shall not be obligated to) make payment for any Securities 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.
(d) Delivery of the
Securities. Delivery of the Securities shall be made through
the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. 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.
Section 3 . Covenants of the
Company.
The Company covenants and agrees
with each Underwriter as follows:
(a) Representatives’ Review
of Proposed Amendments and Supplements. During the period
beginning on the Initial Sale Time 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 by an Underwriter or dealer,
including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act (the
“Prospectus Delivery Period”), prior to amending or
supplementing the
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Registration Statement, the Disclosure Package
or the Prospectus (including any amendment or supplement through
incorporation by reference of any report filed under the Exchange
Act), the Company shall furnish to the Representatives for review a
copy of each such proposed amendment or supplement, and the Company
shall not file or use any such proposed amendment or supplement to
which the Representatives reasonably object.
(b) Securities Act
Compliance. During the Prospectus Delivery Period, the Company
shall promptly advise the Representatives in writing (i) of
the receipt of any comments of, or requests for additional or
supplemental information from, the Commission, (ii) of the
time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) of the time
and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order or notice preventing or
suspending the use of the Registration Statement, any preliminary
prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing or quotation any of the
Company’s securities from any securities exchange upon which
it is listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of
such purposes. The Company shall use its reasonable best efforts to
prevent the issuance of any such stop order or prevention or
suspension of such use. If the Commission shall enter any such stop
order or order or notice of prevention or suspension at any time,
the Company will use its reasonable best efforts to obtain the
lifting of such order at the earliest possible moment, or will file
a new registration statement and use its best efforts to have such
new registration statement declared effective as soon as
practicable. Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b) and 430B, as applicable, under
the Securities Act, including with respect to the timely filing of
documents thereunder, and will use its reasonable efforts to
confirm that any filings made by the Company under such Rule 424(b)
were received in a timely manner by the Commission.
(c) [Intentionally Omitted]
.
(d) Amendments and Supplements to
the Registration Statement, Prospectus and Other Securities Act
Matters. If, during the Prospectus Delivery Period, any event
or development shall occur or condition exist as a result of which,
in the opinion of counsel for the Underwriters or counsel for the
Company, the Disclosure Package or 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 then
prevailing or under which they were made, as the case may be, not
misleading, or if it shall be necessary to amend or supplement the
Disclosure Package or the Prospectus, or to file under the Exchange
Act any document incorporated by reference in the Disclosure
Package or the Prospectus, in order to make the statements therein,
in the light of the circumstances then prevailing or under which
they were made, as the case may be, not misleading, or if in the
opinion of the Representatives it is otherwise necessary to amend
or supplement the Registration Statement, the Disclosure Package or
the Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection
with the delivery of the Prospectus, the Company agrees to
(i) notify the
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Representatives of any such event or condition
and (ii) promptly prepare (subject to Section 3(a) and
3(e) hereof), file with the Commission (and use its best efforts to
have any amendment to the Registration Statement or any new
registration statement to be declared effective) and furnish at its
own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package
or the Prospectus, or any new registration statement, necessary in
order to make the statements in the Disclosure Package or the
Prospectus as so amended or supplemented, in the light of the
circumstances then prevailing or under which they were made, as the
case may be, not misleading or so that the Registration Statement,
the Disclosure Package or the Prospectus, as amended or
supplemented, will comply with law; provided that no amendment or
supplement to the Disclosure Package shall be required under this
Section 3(d) at a time when the Prospectus is then available
to prospective purchasers of the Securities.
(e) Permitted Free Writing
Prospectuses . The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the
Representatives, it will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Securities Act)
required to be filed by the Company with the Commission or retained
by the Company under Rule 433 of the Securities Act; provided that
the prior written consent of the Representatives hereto shall be
deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule B hereto. Any such free writing
prospectus consented to by the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus”.
The Company agrees that (i) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) has complied and will
comply, as the case may be, with the requirements of Rules 164 and
433 of the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record keeping. The Company consents to
the use by any Underwriter of a free writing prospectus that
(a) is not an “issuer free writing prospectus” as
defined in Rule 433 under the Securities Act, and (b) contains
only (i) information describing the preliminary terms of the
Offered Securities or their offering, (ii) information
permitted under Rule 134 under the Securities Act or
(iii) information that describes the fin
