|
Exhibit 1.2
EXECUTION VERSION
The Hershey
Company
Debt
Securities
Underwriting
Agreement
The Underwriters listed on Schedule
I
to the applicable Pricing
Agreement
(as defined herein)
Ladies and
Gentlemen:
From time to time The Hershey
Company, a Delaware corporation (the “Company”),
proposes to enter into one or more Pricing Agreements (each a
“Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain of its debt
securities (the “Securities”) specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement,
the “Designated Securities”).
The terms of any particular
issuance of Designated Securities and the rights of the holders of
such Designated Securities shall be as specified in the Pricing
Agreement relating thereto and in or pursuant to the indenture (the
“Indenture”) identified in such Pricing Agreement.
References in this Agreement to the “Pricing Agreement”
are to the applicable Pricing Agreement relating to the particular
issuance and sale of Designated Securities specified
therein.
1. Introduction .
Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom
the firms designated as representatives of the Underwriters of such
Designated Securities in the Pricing Agreement relating thereto
will act as representatives (the “Representatives”).
The term “Representatives” also refers to a single firm
acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their
representative. This Agreement shall not be construed as an
obligation of the Company to sell any of the Designated Securities
or as an obligation of any of the Underwriters to purchase the
Designated Securities. The obligation of the Company to issue and
sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities,
the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of
delivery of such Designated
Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. Representations,
Warranties and Agreements of the Company . The Company
represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company has filed
with the Securities and Exchange Commission (the
“Commission”) an “automatic shelf registration
statement” as defined in Rule 405 under the Securities Act of
1933, as amended (the “Act”) on Form S-3 (File
No. 333-133938) not earlier than three years prior to the date
hereof in respect of the Securities; such registration statement
and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives and,
excluding exhibits thereto but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, became
effective under the Act upon filing with the Commission and no stop
order suspending the effectiveness of such registration statement,
any post-effective amendment thereto, or any part thereof, or
preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, each as defined
herein, has been issued and no proceeding for any of those purposes
has been initiated or, to the best of the Company’s
knowledge, threatened by the Commission, and no notice of objection
of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act has been received by the Company (the base prospectus filed
as part of such registration statement, in the form in which it has
most recently been filed with the Commission on or prior to the
date of the Pricing Agreement relating to the Designated
Securities, is hereinafter called the “Base
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Designated
Securities filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary
Prospectus”; the Base Prospectus, as amended or supplemented
immediately prior to the Applicable Time (as defined in
Section 2(d) herein), including, without limitation, the last
Preliminary Prospectus filed prior to the Applicable Time, is
hereinafter called the “Pricing Prospectus”; the
various parts of such registration statement, including all
exhibits thereto (other than Forms T-1) and any prospectus
supplement relating to the Designated Securities that is filed with
the Commission and deemed by Rule 430B under the Act to be part of
such registration statement, each as amended at the time such part
of such registration statement became effective, is hereinafter
called the “Registration Statement”; the form of the
final prospectus (including the final prospectus supplement)
relating to the Designated Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Base
Prospectus, the Pricing Prospectus, 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 Act, as of the date of
such
2
prospectus; any reference to
any amendment or supplement to the Base Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the
Registration Statement and any documents filed after the date of
such Base Prospectus, Preliminary Prospectus, Pricing Prospectus or
the Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and
incorporated by reference in such Base Prospectus, Preliminary
Prospectus, Pricing Prospectus or the Prospectus, as the case may
be; any reference to any amendment or supplement to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any prospectus supplement relating
to the Designated Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed after the date of
such Base Prospectus, Preliminary Prospectus or the Prospectus, as
the case may be, under the Exchange Act, and incorporated by
reference in such Base Prospectus, Preliminary Prospectus or the
Prospectus, as the case may be; 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
applicable effective date of the Registration Statement and that is
incorporated by reference in the Registration Statement; any
reference to the Registration Statement shall be deemed to refer to
only such registration statement, as amended by any post-effective
amendments thereto, pursuant to which the Designated Securities
were registered; and any “issuer free writing
prospectus” (as defined in Rule 433(h) under the Act)
relating to the Designated Securities is hereinafter referred to as
an “Issuer Free Writing Prospectus”);
(b) The documents
incorporated by reference in the Pricing Prospectus and Prospectus,
when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the 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, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in any Preliminary Prospectus or
the Prospectus relating to such Designated Securities;
(c) The Registration
Statement, as of the date on which it first became effective,
conforms and any further post-effective amendments to the
Registration Statement, as of the dates on which they become
effective, and the Prospectus, as of its date, and any further
supplements to the Prospectus, as of the dates on which they are
filed with the
3
Commission, as the case may
be, will conform, in all material respects, to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), as applicable, and the rules
and regulations of the Commission thereunder, and do not and will
not, (i) as of the applicable effective dates as to the
Registration Statement and any post-effective amendments thereto,
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 and (ii) as of its date
as to each of the Pricing Prospectus and the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein;
(d) (i) With respect to
any issue of Designated Securities, the “Applicable
Time” will be such time and date as is specified in Schedule
II to the related Pricing Agreement as the Applicable Time (which
the Company and the Representatives have agreed is, as to the issue
and sale of the Designated Securities, the time of execution of the
Pricing Agreement), and the “Pricing Disclosure
Package” will be the Pricing Prospectus together with
(A) the Final Term Sheet (as defined in Section 5(a)
hereof) prepared and filed pursuant to Section 5(a) hereof and
(B) such other Issuer Free Writing Prospectuses, if any, as
may be listed in Schedule III(a) to such Pricing Agreement,
taken together; (ii) with respect to each such issue of
Designated Securities, the Pricing Disclosure Package, as of the
Applicable Time, will not 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
under which they are made, not misleading; and (iii) with
respect to each such issue of Designated Securities, each Issuer
Free Writing Prospectus listed in Schedule III(a) to the
applicable Pricing Agreement will not conflict with the information
contained in the Registration Statement and the Pricing Prospectus
and, taken together with the Pricing Disclosure Package, as of the
Applicable Time, will not 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
under which they are made, not misleading; provided,
however, that the representations and warranties in clauses
(ii) and (iii) of this Section 2(d) shall not apply
to statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use therein;
(e) (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
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) under the Act) made any offer relating to the
Designated Securities in reliance on the exemption of Rule 163
under the Act, and (iv) at the time the
Pricing
4
Agreement is executed (with
such date being used as the determination date for purposes of this
clause (iv)), the Company was and is a “well-known seasoned
issuer” (as defined in Rule 405 under the
Act);
(f) The Company was not, 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 64(h)(2) under the Act),
and is not an “ineligible issuer” (as defined in Rule
405 under the Act);
(g) With respect to an
issuance of Designated Securities, the Company has not made and
will not make, prior to the later of the Time of Delivery (as
defined in Section 4 hereof) for such Designated Securities
and the completion of the Underwriters’ distribution of such
Designated Securities, any offer that would constitute a
“free writing prospectus” (as defined in Rule 405 under
the Act), without the prior consent of the Representatives; and the
Company has complied and will comply with the requirements of Rule
433 under the Act applicable to any such free writing prospectus,
including timely filing with the Commission or retention where
required and legending;
(h) The Company maintains a
consolidated system of internal control over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange
Act) that complies with the requirements of the Exchange Act and
has been designed by, or under the supervision of, the
Company’s principal executive officer and principal financial
officer to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted
accounting principles. Except as disclosed in the Pricing
Prospectus, the Company’s internal control over financial
reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial
reporting;
(i) The Company has
established and maintains “disclosure controls and
procedures” (as defined in Rules 13a-15(e) and 15d-15(e)
under the Exchange Act) that are designed to ensure that
information (both financial and non-financial) required to be
disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the rules and
regulations of the Commission, and that all such information
required to be disclosed is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications of the
Chief Executive Officer and Chief Financial Officer of the Company
required under the Exchange Act with respect to such
reports;
(j) Since the respective
dates as of which information is given in the Pricing Prospectus
and the Prospectus, there has not been any change in the capital
stock (other than the conversion of less than 250,000 shares of the
Company’s Class B Common Stock (the “Class B Common
Stock”) to Common Stock or issuances or repurchases in
connection with employee stock incentive plans or repurchases
pursuant to the Company’s share repurchase program announced
during December 2005, or the repurchases of Common Stock from the
Milton Hershey School Trust) or increases in the consolidated
long-term debt of the Company and any of its subsidiaries
(exclusive of
5
increases of $50 million or
less of long-term debt other than capitalized lease obligations,
increases attributable to new capitalized lease obligations
aggregating $5 million or less and increases related to the
translation of foreign currency indebtedness at rates of exchange
different from those in effect on the respective dates as of which
information is so given) or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth
in the Pricing Prospectus and the Prospectus;
(k) The Company has been duly
incorporated and is validly existing as a 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 Pricing
Prospectus and the Prospectus;
(l) The Company has an
authorized capitalization as set forth in the Pricing Prospectus
and the Prospectus, and all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(m) The Indenture dated as of
September 16, 2005 between the Company and Citibank, N.A. has
been duly authorized and duly qualified under the Trust Indenture
Act and, at the Time of Delivery for the Designated Securities, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; the
Designated Securities have been duly authorized, and, when the
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Pricing Disclosure Package;
(n) The issue and sale of the
Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, the result of which will have a material adverse change
or effect on the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, nor will such action result
in any violation of the provisions of the Restated Certificate of
Incorporation or
6
By-laws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Pricing
Agreement or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(o) Other than as set forth
in the Pricing Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries would,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole; and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
(p) The Company is in
compliance in all material respects with all applicable provisions
of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
3. Offer and Sale of
Designated Securities . Upon the execution of the Pricing
Agreement applicable to the Designated Securities and authorization
by the Representatives of the release of such Designated
Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. Payment and Settlement
for Designated Securities . Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in global form, and in such authorized
denominations and registered in such name or names as the
Representatives may request upon at least forty-eight hours’
prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives, for the account of such
Underwriter, against payment by such Underwriter or on its behalf
of the purchase price therefor by wire transfer in immediately
available funds (or such other funds as specified in the Pricing
Agreement), payable to the order of the Company, all at the place
and time and date specified in the Pricing Agreement or at such
other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being herein
called the “Time of Delivery” for such Designated
Securities.
5. Further Agreements of
the Company . The Company agrees with each of the Underwriters
of any Designated Securities:
(a) (i) To prepare the
Prospectus in relation to the Designated Securities in a form
approved by the Representatives and the Company and to file such
Prospectus pursuant
7
to Rule 424(b) under the Act
not later than the Commission’s close of business on the
second business day following the execution and delivery of the
Pricing Agreement relating to the Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b)
under the Act; (ii) to make no further amendment or any
supplement to the Registration Statement, the Base Prospectus or
the Prospectus after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for
such Designated Securities which shall be reasonably disapproved in
writing by the Representatives for such Designated Securities
promptly after reasonable notice thereof ( provided,
however, this clause (ii) shall, in the case of any
periodic or current report that the Company is required to file
pursuant to Section 13(a), 13(c) or Section 15(d) under
the Exchange Act prior to or at the Time of Delivery, apply to the
extent practicable in the light of the circumstances, but in any
event, the Representatives shall be notified in advance of any such
filing that will be incorporated by reference in the Prospectus);
(iii) to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; (iv) to file by the
filing deadlines prescribed by the Exchange Act and the rules
thereunder, all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, subsequent to the date of the Prospectus, for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering or sale of such Designated Securities; (v) to prepare
a final term sheet relating to the Designated Securities containing
only a description of the Designated Securities, substantially in
the form of Schedule III(b) to the Pricing Agreement, and to comply
with the requirements of Rule 164 and 433 under the Act applicable
to such term sheet, including timely filing thereof with the
Commission, legending and retention where required (such term
sheet, the “Final Term Sheet”); (vi) to file
within the time period prescribed by Rule 433(d) under the Act all
other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act; (vii) for so
long as the delivery of a prospectus is required in connection with
the offering or sale of Designated Securities (including in
circumstances where such requirement can be satisfied pursuant to
Rule 172 under the Act), to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Designated Securities, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, of the receipt
from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act for the registration of
the offer and sale of the Designated Securities, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and (viii) in the event of the issuance of any such stop order
or of any such order or notice preventing or suspending the use of
any prospectus relating to the Designated Securities or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify such Designated Securities for offering and sale
under the
8
securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and secondary
transactions therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated
Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the
Underwriters with copies of the Prospectus in such quantities as
the Representatives may from time to time reasonably request, and
if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Designated Securities
(including in circumstances where such requirement can be satisfied
pursuant to Rule 172 under the Act) and if at such time any event
shall have occurred as a result of which the Prospectus or, prior
to the filing of the Prospectus, the Pricing Disclosure Package as
then amended or supplemented would include an 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 when such Prospectus is delivered, not
misleading, or, if for any other reason, it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally
available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the
Act), consolidated statements of income of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158 under the Act); and
(e) To not make without the
prior written consent of the Representatives, any offer relating to
the Designated Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 under the Act)
required to be filed by the Company with the Commission or retained
by the Company under Rule 433 under the Act; provided that
the prior written consent of the Representatives hereto shall be
deemed to have been given in respect of the Issuer Free Writing
Prospectuses included in Schedule III(a) to the Pricing Agreement;
each such free writing prospectus consented to by the
Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus”; the Company agrees that
(i) each Permitted Free Writing Prospectus will constitute 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 under the Act applicable to any Permitted Free Writing
Prospectus, including timely filing thereof with the Commission,
legending and retention where required.
9
6. Representations,
Warranties and Agreements of the Underwriters . Each
Underwriter represents and warrants to, and agrees with, the
Company and each other Underwriter that:
(a) Such Underwriter has not
made, and will not make (other than as permitted by
Section 6(b) hereof), any offer relating to the Designated
Securities that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Act), without
the prior consent of the Company and the Representatives;
and
(b) Such Underwriter has not
used, and will not use, any free writing prospectus that contains
the final terms of the Designated Securities unless such terms have
previously been included in a free writing prospectus filed with
the Commission in accordance with Rule 433 under the Act, without
the prior consent of the Company and the Representatives,
provided, however , that each of the Underwriters may use
one or more term sheets relating to the Designated Securities
containing customary information, including Bloomberg email
announcement, price talk guidance, comparable bond pricing and
final pricing terms, not inconsistent with the form of the Final
Term Sheet attached as Schedule III(b) to Pricing Agreement,
without the prior consent of the Company or the
Representatives.
7. Payment of Expenses
. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
Agreement, the Pricing Agreement, the Indenture, any Blue Sky
Memorandum and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities;
(iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey;
(iv) any fees charged by securities rating services for rating
the Designated Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Designated Securities;
(vi) the cost of preparing the Designated Securities;
(vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any
Trustee in connection with the Indenture and the Designated
Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 7. It is
understood, however, that, except as provided in this
Section 7 and Sections 9 and 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated
Securities by them, and any advertising expenses connected with any
offers they may make.
8. Conditions of the
Underwriters’ Obligations . The obligations of the
Underwriters of the Designated Securities under the Pricing
Agreement shall be subject, in the discretion of the
10
|
