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Exhibit 1.1
EXECUTION COPY
The Dun & Bradstreet
Corporation
6.00% Senior Notes Due
2013
Underwriting
Agreement
New York, New York
March 27,
2008
To the Representatives named
in
Schedule I hereto of
the
Underwriters named
in
Schedule II
hereto
Ladies and Gentlemen:
The Dun & Bradstreet
Corporation, a corporation organized under the laws of Delaware
(the “Company”), proposes to sell to the several
underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule I
hereto (the “Securities”), to be issued under an
indenture (the “Indenture”) dated as of March 14,
2006, between the Company and The Bank of New York , as
trustee (the “Trustee”). To the extent there are no
additional Underwriters listed on Schedule II other than you,
the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 19
hereof.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (the file number of
which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the
Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company may have
filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more
Preliminary Prospectuses,
each of which has previously
been furnished to you. The Company will file with the Commission a
final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and
the rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date,
the Registration Statement did, and when the Final Prospectus is
first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration
Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
on the Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any
supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriters consists of the
information described as such in Section 8 hereof.
(c) As of the Execution Time
and the Closing Date, the Disclosure Package, when taken together
as a whole, does 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.
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(d) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the
exemption in Rule 163, and (iv) at the Execution Time (with
such date being used as the determination date for purposes of this
clause (iv)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule 405.
The Company agrees to pay the fees required by the Commission
relating to the Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(e) (i) At the
earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and
(ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the
Company was not and is not an Ineligible Issuer (as defined in Rule
405), without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing 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.
(g) Each of the Company and
its subsidiaries has been duly organized and is validly existing as
an organization in good standing under the laws of the jurisdiction
in which it is chartered or organized with full power and authority
to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Disclosure Package and
the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction that requires such qualification, except where the
failure to be so qualified or in good standing could not be
reasonably expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a “Material
Adverse Effect”).
(h) Except as otherwise would
not have a Material Adverse Effect, all the outstanding ownership
interests of each subsidiary have been duly and validly authorized
and issued and, in the case of corporations, are fully paid and
nonassessable, and, except
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as otherwise set forth in the
Disclosure Package and the Final Prospectus, all outstanding
ownership interests of the subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests,
claims, liens or encumbrances.
(i) There is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required; and
the statements in the Preliminary Prospectus and the Final
Prospectus under the heading “Description of Senior
Notes” 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.
(j) This Agreement has been
duly authorized, executed and delivered by the Company.
(k) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the
Act and the Trust Indenture Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus, and
except where the lack thereof would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Neither the issue and
sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or
to which its or their property is subject, or (iii) 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) or (iii) above, for
such conflicts, breaches, liens, charges, encumbrances or
violations that could not reasonably be expected to result in a
Material Adverse Effect.
(m) No holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement.
(n) The consolidated
historical financial statements and schedules of the Company and
its consolidated subsidiaries included or incorporated by reference
in the Preliminary Prospectus, the Final Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the
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applicable accounting
requirements of the Act and the Exchange Act and have been prepared
in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth
under the caption “Selected Financial Data” in the
Preliminary Prospectus, the Final Prospectus and Registration
Statement fairly present, on the basis stated in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement,
the information included therein.
(o) 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 or its or their property is pending or, to the best
knowledge of the Company, threatened that could reasonably be
expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(p) Each of the Company and
each of its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted,
except where such failure to own or lease such properties would not
have a Material Adverse Effect.
(q) Neither the Company nor
any subsidiary is in violation or default of (i) any provision
of its charter, bylaws or other organizational documents,
(ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, with respect to clauses
(ii) and (iii) above, for such violations or defaults
that could not reasonably be expected to have a Material Adverse
Effect.
(r) To the best of the
Company’s knowledge, PricewaterhouseCoopers LLP, who have
certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included in the Prospectus, are an independent registered public
accounting firm with respect to the Company within the meaning of
the Act and the applicable published rules and regulations
thereunder.
(s) The Company has filed all
foreign, federal, state and local income tax returns that are
required to be filed or has requested extensions thereof (except in
any case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto) and has paid all taxes required to be paid by
it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that
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is currently being contested
in good faith or as would not have a material adverse effect on the
condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(t) No labor problem or
dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, except for such problems or disputes that
could not reasonably be expected to result in a Material Adverse
Effect.
(u) The Company and each of
its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of
its subsidiaries under any such policy or instrument as to which
any insurance company is denying liability or defending under a
reservation of rights clause, except as would not have,
individually or in the aggregate, a Material Adverse Effect;
neither the Company nor any such subsidiary has been refused within
the past five years any insurance coverage sought or applied for;
and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(v) No significant subsidiary
of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock or other
ownership interests, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring
any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, except as described in or
contemplated by the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(w) The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses except for such licenses, certificates, permits and
other authorizations that if not possessed would not, individually
or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in
the
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aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto).
(x) The Company and each of
its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance regarding the
reliability of financial reporting and preparation of financial
statements in accordance with generally accepted accounting
principles, except as otherwise would not have a Material Adverse
Effect.
(y) The Company has not
taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(z) The Company and its
subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses, and (iii) have not received
notice of any actual or potential liability under any environmental
law, except, in each case, where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(aa) Except as otherwise
disclosed in the Disclosure Package or as would not have a Material
Adverse Effect, the minimum funding standard under Section 302
of the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder
(“ERISA”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has
been established or maintained by the Company and/or one or more of
its subsidiaries which is a member of the Company’s
controlled group within the meaning of ERISA or Section 414 of
the Code (“Controlled Subsidiary”) to the extent that
such standards are applicable to such plan, and the trust forming
part of each such plan which is intended to be qualified under
Section 401(a) of the Code is exempt from tax under
Section 501(a) of the Code to the best of the Company’s
knowledge; each of the Company and its subsidiaries has fulfilled
its obligations, if any, under Section 515 of ERISA; each
pension plan and welfare plan established or maintained by the
Company and/or one or more of its Controlled Subsidiaries is in
compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its
Controlled Subsidiaries has incurred or could reasonably be will
likely incur any withdrawal liability under Section 4201 of
ERISA, any liability under Section 4062, 4063, or 4064 of
ERISA, or any other liability under Title IV of ERISA.
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(bb) There is and has been no
material failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(cc) Except for such actions
that would not have a Material Adverse Effect, 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 aware of or has taken any action,
directly or indirectly, that would result in a violation by such
Persons of the Foreign Corrupt Practices Act of 1977, as amended,
(the “FCPA”) and the rules and regulations thereunder
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company, its subsidiaries and, to the knowledge of the
Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(dd) Except as otherwise
would not have a Material Adverse Effect, the operations of the
Company and its subsidiaries are and have been conducted at all
times in compliance 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 best knowledge of the Company, threatened.
(ee) 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.
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(ff) The subsidiaries listed
on Annex A attached hereto are the only significant subsidiaries of
the Company as defined by Rule 1-02 of Regulation S-X (the
“Subsidiaries”).
(gg) The Company and its
subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Disclosure Package and the Final Prospectus to be conducted.
(a) To the Company’s knowledge, there are no rights of
third parties to any such Intellectual Property other than licensed
rights; (b) to the Company’s knowledge, there is no
material infringement by third parties of any such Intellectual
Property; (c) there is no material pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any
such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (d) to
the Company’s best knowledge, there is no material pending or
threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis
for any such claim; (e) there is no material pending or, to
the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact
which would form a reasonable basis for any such claim; (f) to
the Company’s knowledge, there is no material U.S. patent or
published U.S. patent application which contains claims that are
infringed by the Company; and (g) there is no material prior
art of which the Company is aware that may render any U.S. patent
held by the Company invalid or any U.S. patent application held by
the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office.
(hh) Neither the Company nor
any of its subsidiaries nor any of its or their properties or
assets has any immunity from the jurisdiction of any court or from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution or otherwise)
under the laws of New York.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
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3. Delivery and
Payment . Delivery of and payment for the Securities shall be
made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds to
an account specified by the Company. Delivery of the Securities
shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise
instruct.
4. Offering by
Underwriters . It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements . The
Company agrees with the several Underwriters that:
(a) Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company
will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
when the Final Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to
Rule 424(b), (1) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (2) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any notice that would prevent its use or the use of
the Preliminary Prospectus or Final Prospectus or the institution
or threatening of any proceeding for that purpose, and (4) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its commercially reasonable
best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or prevention and, upon such
issuance, occurrence or prevention, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or
prevention, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using
its commercially reasonable best efforts to have such amendment or
new registration statement declared effective as soon as
practicable.
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(b) The Company will prepare
a final term sheet, containing solely a description of the
Securities, substantially in the form attached as Schedule IV
hereto and file such term sheet pursuant to Rule 433(d) within the
time required by such Rule.
(c) If there occurs an event
or development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Representatives so
that any use of the Disclosure Package may cease until it is
amended or supplemented.
(d) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or
delivery of the Final Prospectus, the Company promptly will
(1) notify the Representatives of such event, (2) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such
statement or omission or effect such compliance, and
(3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(e) As soon as practicable,
the Company will make generally available to its security holders
and to the Representatives an earnings statement or statements of
the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish
to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies
of each Preliminary Prospectus, the Final Prospectus and each
Issuer Free Writing Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating
to the offering.
(g) The Company will arrange,
if necessary, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any
fee of the Financial Industry Regulatory Authority, in connection
with its review of the offering; provided that in no event shall
the Company be obligated to qualify to do business in any
jurisdiction where it is not now
11
so qualified or to take any
action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(h) The Company agrees that,
unless it obtains the prior written consent of the Representatives,
and each Underwriter, severally and not jointly, agrees with the
Company that, unless it has obtained or will obtain, as the case
may be, the prior written consent of the Company, it has not made
and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as
defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule 433, other than
the final term sheet prepared and filed pursuant to
Section 5(b) hereto; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect
of the Free Writing Prospectuses included in Schedule III hereto.
Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees
that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 applicable
to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record
keeping.
(i) The Company will not,
without the prior written consent of the Representatives, offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate
of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I
hereto.
(j) The Company will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
6. Conditions to the
Obligations of the Underwriters . The obligations of the
Underwriters to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and
any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet
contemplated by Section 5(b) hereto, and any other material
required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration
Statement or any notice that would prevent its use shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the Company’s knowledge,
threatened.
12
(b) The Company shall have
requested and caused Shearman & Sterling LLP, counsel for
the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company is a
corporation duly incorporated, validly existing and in good
standing under the law of the State of Delaware with corporate
power and authority under such law to conduct its business as
described in the Preliminary Prospectus and the Final
Prospectus;
(ii) the Company (a) has
the corporate power to execute, deliver and perform each of this
Agreement, the Indenture and the Securities to which it is a party
and (b) has taken all corporate action necessary to authorize
the execution, delivery and performance of each such document to
which it is a party;
(iii) the execution and
delivery by the Company of each of this Agreement, the
officers’ certificate establishing the form and terms of the
Securities pursuant to Sections 201 and 203 of the Indenture, and
the Securities to which it is a party do not, and the performance
by the Company of its obligations thereunder will not,
(a) result in a violation of the Company’s Restated
Certificate of Incorporation or Amended and Restated By-laws,
(b) result in a violation of Generally Applicable Law (defined
as the federal law of the United States of America, and the law of
the State
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