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Exhibit 1.1
Form Version
Bristol-Myers Squibb
Company
5.450% Notes due
2018
6.125% Notes due
2038
Underwriting
Agreement
New York, New York
April 28,
2008
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Bristol-Myers Squibb Company,
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 June 1,
1993, as supplemented by a supplemental indenture, to be dated as
of May 1, 2008 (collectively, the “Indenture”),
between the Company and The Bank of New York (as successor to
JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase Bank, formerly
The Chase Manhattan Bank (successor to The Chase Manhattan Bank
(National Association)))), 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. Certain terms used herein are
defined in Section 24 hereof.
1. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 of the Act
on Form S-3 (File No. 333-150471) in respect of the
Securities has been filed with the Commission not earlier than
three years prior to the date hereof; 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 to such registration statement, but including
all documents incorporated by reference in the prospectus included
therein, became effective in such form; no other document
with
respect to such registration
statement (including all documents incorporated by reference
therein) has heretofore been filed or transmitted for filing with
the Commission (other than the documents heretofore incorporated by
reference therein and the prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of such registration
statement, or any part thereof, has been issued and no proceeding
for that purpose has been initiated or 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 this
Agreement relating to the Securities, is hereinafter called the
“Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration
statement, including all exhibits thereto and including any
prospectus supplement relating to the Securities that is filed with
the Commission and deemed by virtue of 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, are
hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented
(including by any Preliminary Prospectus) immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with
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 Basic
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, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act and any documents filed under the Exchange Act, and
incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to
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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;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act, and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, 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 through the Representatives expressly for use
therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is 4:45 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as
supplemented by the final term sheet prepared (and to be
subsequently filed) pursuant to Section 5(a) hereof, taken
together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did 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 were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule III(a) hereto does not conflict with the information
contained in the Registration Statement or the Pricing Prospectus
and will not conflict with the information to be contained in the
Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did 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 were made, not misleading;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
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(d) 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 required to be stated therein or
necessary to make the statements therein 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 required to be stated therein or necessary to make
the statements therein 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 through the
Representatives expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close
of business on the Business Day immediately prior to the date of
this Agreement and prior to the execution of this Agreement, except
as set forth on Schedule III(b) hereto;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus
and any amendment or supplement 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; 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 through the
Representatives for use therein;
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(f) Neither the Company nor
any of its Significant Subsidiaries, as defined in Rule 1-02
(w) of Regulation S-X under the Act (the “Significant
Subsidiaries”), has sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Pricing Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries 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, otherwise than as
set forth or contemplated in the Pricing Prospectus;
(g) The Company has been duly
incorporated and is validly existing as a 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 Pricing Prospectus;
(h) The Company has an
authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(i) The Securities have been
duly authorized, and, when issued, duly authenticated pursuant to
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable against the
Company and entitled to the benefits provided by the Indenture,
which is substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized,
executed and delivered and duly qualified under the Trust Indenture
Act and, at the Closing Date (as defined in Section 3), 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; and the
Indenture conforms, and the Securities will conform, to the
descriptions thereof contained in the Pricing Disclosure Package
and the Prospectus as amended or supplemented;
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(j) This Agreement has been
duly authorized, executed and delivered by the Company;
(k) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement, and
the consummation of the transactions herein and therein
contemplated will not (i) 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, except for such
breaches, violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material
Adverse Effect on the current or future consolidated financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries (a “Material Adverse
Effect”), (ii) result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company, or
(iii) result in any violation of any law, 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,
except for such breaches, violations and defaults that individually
and in the aggregate would not reasonably be expected to have a
Material Adverse Effect; 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 Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture except
such as have been, or will have been prior to the Closing Date,
obtained under the Act and the Trust Indenture Act, or which if not
obtained would not have a Material Adverse Effect on the
consummation by the Company of the transactions contemplated by
this Agreement, 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 Securities by the Underwriters;
(l) The statements set forth
in the Pricing Disclosure Package and the Prospectus under the
caption “Description of the Notes” and
“Description of the Debt Securities” insofar as they
purport to constitute a summary of the terms of the Indenture and
the Securities, and under the captions “Plan of
Distribution” and “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
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(m) Neither the Company nor
any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (or equivalent
organizational documents) or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except
for such violations that individually and in the aggregate would
not reasonably be expected to have a Material Adverse
Effect;
(n) Other than as set forth
in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or
any of its Significant Subsidiaries is the subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; and, to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(o) Except as described in
the Pricing Prospectus, to the Company’s knowledge, the
Company and its Significant Subsidiaries own, possess or have the
right to employ sufficient patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, software, systems or procedures), trademarks, service
marks and trade names, inventions, computer programs, technical
data and information (collectively, the “Intellectual
Property Rights”) reasonably necessary to conduct their
businesses as now conducted. Neither the Company nor any of its
Significant Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of
the Intellectual Property Rights except as would not reasonably be
expected to, individually or in the aggregate, result in a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business. Except as described in the Pricing
Prospectus, to the Company’s knowledge the use of the
Intellectual Property Rights in connection with the business and
operations of the Company and its subsidiaries does not infringe on
the rights of any person, except as could not reasonably be
expected to individually or in the aggregate result in a Material
Adverse Effect;
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(p) Neither the Company nor
any of its Significant Subsidiaries (i) is in violation of any
law, statute, or any rule, regulation, decision or order of any
governmental agency or body or any court 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”), (ii) owns or operates any
real property which, to its knowledge, is contaminated with any
substance that is subject to any environmental laws, (iii) is,
to its knowledge, liable for any off-site disposal or contamination
pursuant to any environmental laws, or (iv) has received any
written notice of any claim under any environmental laws and the
Company is not aware of any pending investigation which could
reasonably be expected to lead to such a claim, in each such case,
which violation, contamination, liability or claim would have,
individually or in the aggregate, a Material Adverse
Effect;
(q) The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(r) (i) (A) At the
time of filing the Registration Statement, (B) 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), and (C) 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
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (ii) 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) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(s) Each of
PricewaterhouseCoopers LLP and Deloitte & Touche LLP, who
have audited certain financial statements of the Company and its
subsidiaries contained or incorporated by reference in the
Registration Statement, Pricing Prospectus and Prospectus and, in
the case of Deloitte & Touche LLP, audited the
Company’s internal
8
control over financial
reporting, is an independent registered public accounting firm as
required by the Act and the rules and regulations of the Commission
thereunder;
(t) The Company maintains a
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
the Company’s principal executive officer and principal
financial officer, or under their supervision, 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. As of March 31, 2008, the Company’s internal
control over financial reporting was effective. The Company is not
aware of any material weaknesses in its internal control over
financial reporting;
(u) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Prospectus and the Prospectus, other than
as disclosed in the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting; and
(v) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and, as of March 31, 2008, such
disclosure controls and procedures were effective; and
(w) The Registration
Statement, at the Applicable Time, meets the requirements set forth
in Rule 415(a)(1)(x).
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 issue and sell to each Underwriter, and each Underwriter agrees,
severally and not
9
jointly, to purchase from the Company,
at the purchase price set forth in Schedule I hereto the principal
amount of Securities set forth opposite such Underwriter’s
name in Schedule II hereto.
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 10 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing
Date”). The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company
(“DTC”) or its designated custodian. The Company will
deliver the Securities to the Representatives, for the account of
each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of the
Representatives at DTC. The Company will cause the certificates
representing the Securities to be made available to Representatives
for checking at least twenty-four hours prior to the Closing Date
at the office of DTC or its designated custodian (the
“Designated Office”).
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 Pricing Disclosure Package.
5. Agreements. The
Company agrees with the several Underwriters:
(a) To prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus pursuant 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 this Agreement or such
earlier time as may be required under the Act; to make no further
amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the Closing Date which
shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any amendment or supplement to the Prospectus has been filed and to
furnish the Representatives with copies thereof; to prepare a final
term sheet in a form approved by the Representatives and to file
such term sheet pursuant to Rule 433(d) under the Act (the
“Final Term Sheet”);
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to file promptly 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 and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173 under the Act) is required in connection with the
offering or sale of the Securities, and during such same period to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Pricing Prospectus or any amended Pricing Prospectus has been
filed with the Commission, 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 Securities, of any notice of objection
of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Pricing Prospectus or for additional
information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such
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) Prior to 5:00 p.m., New
York City time, on the Business Day next succeeding the date of
this Agreement and from time to time thereafter, to furnish the
Underwriters with written and electronic copies of the Prospectus
in New York City in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required at any time in connection with the offering or sale of
the Securities and if at such time any event shall have
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occurred as a result of which
the Prospectus 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 (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any
other reason it shall be necessary during such 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 written and
electronic 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 security holders 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), an earnings statement 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);
(e) During the period
beginning from the date hereof and continuing to and including the
Closing Date, not to offer, sell, contract to sell, pledge, grant
any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder, of any debt securities of the Company
which mature more than one year after such Closing Date and which
are substantially similar to such Securities, without the prior
written consent of the Representatives;
(f) To pay the required
Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
provided, however, that any such required filing fees shall be paid
prior to the Closing Date.
(g) To use the net proceeds
received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under
the caption “Use of Proceeds”;
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(h) To comply with all
applicable securities and other applicable laws, rules and
regulations, including, without limitation, the Sarbanes Oxley Act,
and to use its best efforts to cause the Company’s directors
and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act;
(i) Not to 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; and
(j) Upon request of any
Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s corporate
trademarks, corporate servicemarks and corporate logo for use on
the website, if any, operated by such Underwriter for the purpose
of facilitating the on-line offering of the Securities (the
“License”); provided, however, that the License shall
be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
6.
(a) (i) The Company
represents and agrees that, other than the Final Term Sheet
prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of the Representatives, it has not made and will
not make any offer relating to the Securities that would constitute
a “free writing prospectus” as defined in Rule 405
under the Act;
(ii) each Underwriter
represents and agrees that, without the prior consent of the
Company and the Representatives, it has not made and will not make
any offer relating to the Securities that would constitute a free
writing prospectus, other than one or more term sheets relating to
the Securities that do not require the Company to file any material
with the Commission other than the filing of the Final Term Sheet
within two days as provided in Rule 433(d)(5)(ii); and
(iii) any such free writing
prospectus the use of which has been consented to by the Company
and the Representatives (including the Final Term Sheet prepared
and filed pursuant to Section 5(a) hereof and any other filing
relating to the Securities made in reliance on the exemption of
Rule 163 under the Act) is listed on Schedule III(a)
hereto;
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(b) The Company has complied
and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission or retention where required and
legending; and
(c) The Company agrees that
if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice
thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus
made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. 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, reproduction and filing of the Registration
Statement, the Basic Prospectus, 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, any indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the 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 and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating
the Securities; (v) any filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection
with, any required review by the Financial Industry Regulatory
Authority of the terms of the sale of the Securities; (vi) the
cost of preparing certificates for the Securities; (vii) the
fees and expenses of any Trustee and any agent of any
Trustee
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and the fees and disbursements of
counsel for any Trustee in connection with any indenture and the
Securities; and (viii)
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