Exhibit 1.1
75,000,000 Shares
BB&T
Corporation
Common Stock ($5.00 par
value)
Underwriting
Agreement
May 12, 2009
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities
Inc.
383 Madison Avenue
New York, New York 10179
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
As Representatives of the
several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
BB&T Corporation, a North
Carolina corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule II
hereto (the “ Underwriters ”) an aggregate of
75,000,000 shares (the “ Firm Shares ”) and, at
the election of Goldman, Sachs & Co., J.P. Morgan
Securities Inc. and Morgan Stanley & Co. Incorporated
(together, the “ Representatives ”), up to
11,250,000 additional shares (the “ Optional Shares
”) of the Company’s common stock, $5.00 par value (the
“ Common Stock ”). The Firm Shares and the
Optional Shares may be collectively referred to herein as the
“ Shares .”
1. The Company (on behalf of itself
and each of its subsidiaries) represents and warrants to, and
agrees with, each of the Underwriters that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Securities
Act ”) on Form S-3 (File No. 333-152543) in respect
of the Shares has been filed with the Securities and Exchange
Commission (the “ Commission ”) not earlier than
three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on
filing; 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 Securities 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, is hereinafter called the “
Basic Prospectus ”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act is hereinafter called a “ Preliminary
Prospectus ”; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1
and including any prospectus supplement relating to the Shares that
is filed with the Commission and deemed by virtue of Rule 430B to
be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ”; the Basic Prospectus, as amended and
supplemented 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 Shares filed with the Commission pursuant to Rule
424(b) under the Securities 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 under the Securities Act, 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 Shares filed with the Commission pursuant to Rule
424(b) under the Securities Act and any documents filed under the
Securities Exchange Act of 1934, as amended (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 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 Securities Act relating to the Shares 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 Securities 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
the Representatives expressly for use therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 6:30 p.m.
(Eastern time) on the date of this Agreement. The Pricing
Prospectus, 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 I(b) hereto does not conflict with the
information contained in the Registration Statement, the
Pricing
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Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus 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 the Representatives expressly for use
therein.
(d) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, 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; 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 Securities 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 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
I(c) 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
Securities 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 the Representatives expressly for use
therein.
(f) The Company (i) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of North Carolina,
(ii) is duly registered as a bank holding company and is
qualified as a financial holding company under the Bank Holding
Company Act of 1956, as amended, and (iii) has corporate power
and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement, the
Pricing Prospectus and the Prospectus. The Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease
of properties or the conduct of its business requires such
qualification, except
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where the failure to be so qualified or in good
standing would not, individually or in the aggregate, result in any
material adverse change in the condition, financial or otherwise,
or in the earnings, income, affairs or business prospects of the
Company and its subsidiaries considered as one enterprise (a
“ Material Adverse Effect ”).
(g) Branch Banking and Trust Company
(the “ Principal Banking Subsidiary ”) has been
duly incorporated and is validly existing as a state-chartered
commercial bank in good standing under the laws of the State of
North Carolina and has corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Registration Statement, the Pricing Prospectus and the
Prospectus; all of the issued and outstanding capital stock of the
Principal Banking Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and 100% of the
capital stock of the Principal Banking Subsidiary is owned by the
Company, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(h) The Company has an authorized
capitalization as set forth in the Pricing Prospectus and all
outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights. Other than as set
forth in the Pricing Prospectus or the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire from the Company, or
instruments convertible or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding
or arrangement of any kind to which the Company or any of its
subsidiaries is a party relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options,
except as may have been granted by the Company pursuant to employee
awards and employee benefit plans in the ordinary course of
business and consistent with past practice. The capital stock of
the Company conforms to the descriptions thereof contained in the
Pricing Prospectus and the Prospectus.
(i) The Shares to be issued and sold
by the Company to the Underwriters hereunder have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable and will conform to the description
of the Shares contained in the Prospectus.
(j) The Company’s Common Stock
is registered pursuant to Section 12(b) of the Exchange Act
and is listed on the New York Stock Exchange (the “
NYSE ”), and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common
Stock from the NYSE, nor has the Company received any notification
that the Commission or the NYSE is contemplating terminating such
registration or listing.
(k) The Company has all corporate
power and authority necessary to execute and deliver this
Agreement, and to perform its obligations under this Agreement; the
execution, delivery and performance of this Agreement by the
Company, the compliance with the provisions hereof by the Company
and the consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action and will not
conflict with or
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constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any
of them may be bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except where
such breach or default would not result in a Material Adverse
Effect, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any law,
administrative regulation or administrative or court order or
decree; and no consent, approval, authorization, order or decree of
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the Securities
Act or the rules and regulations of the Commission thereunder, all
of which have been obtained, or such as may be required under state
securities or “blue sky” laws in connection with the
purchase and distribution of the Shares by the
Underwriters.
(l) This Agreement has been duly
authorized, executed and delivered by the Company.
(m) Neither the Company nor any of
its subsidiaries is in violation of its organizational documents or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it
or any of them or their properties or assets may be bound, except
for such violations or defaults that would not result in a Material
Adverse Effect.
(n) The Company and its subsidiaries
own or possess or have obtained all material governmental licenses,
permits, consents, orders, approvals and other authorizations
necessary to lease or own, as the case may be, and to operate their
respective properties and to carry on their respective businesses
as presently conducted, except where the failure to own, possess or
maintain such governmental licenses, permits, consents, orders,
approvals and other authorizations would not, individually or in
the aggregate, result in a Material Adverse Effect.
(o) The Company and its subsidiaries
own or possess all material trademarks, service marks and trade
names necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names
which, if the subject of an unfavorable decision, ruling or
finding, would, individually or in the aggregate, result in a
Material Adverse Effect.
(p) There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting,
the Company or any of its subsidiaries, which may reasonably be
expected to result in a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the
properties or assets thereof or which may reasonably be expected to
materially and adversely affect the consummation of this Agreement
and the consummation of the transactions contemplated hereby; and
there are no material contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the Securities Act or by the rules
and regulations of the Commission thereunder which have not been so
filed.
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(q) No material labor dispute with
the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent.
(r) The Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Pricing
Prospectus and the Prospectus, will not be, an “investment
company” or an entity “controlled” by an
“investment company”, that is required to be registered
under the Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(s) (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 Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), 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 Securities Act) made any offer relating to
the Shares in reliance on the exemption of Rule 163 under the
Securities Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Securities 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
Securities Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Securities Act.
(t) The accountants who certified
the financial statements, the Company’s management’s
assessment of internal controls, and the Company’s internal
controls included or incorporated by reference in the Pricing
Prospectus and the Prospectus are an independent registered public
accounting firm as required by the Securities Act and the Exchange
Act and the rules and regulations issued by the Commission
thereunder.
(u) 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. 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.
(v) The financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus, together with the related schedules and notes,
comply as to form in all material respects with the requirements of
the Securities Act and present fairly, in all material respects,
the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved.
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(w) Since the date of the latest
audited financial statements included or incorporated by reference
in the Pricing Prospectus and the 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.
(x) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e))
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 such disclosure controls and procedures are
effective.
(y) Since the respective dates as of
which information is given in the Registration Statement, the
Pricing Prospectus or the Prospectus, except as otherwise stated
therein or contemplated thereby, (i) there has been no
material decrease in the capital stock or any material increase in
the long-term debt of the Company or any of its subsidiaries,
(ii) there has been no Material Adverse Effect and
(iii) there have been no material transactions entered into by
the Company or any of its subsidiaries other than those in the
ordinary course of business.
(z) To the best knowledge of the
Company, the operations of the Company are currently in material
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 any instances of
non-compliance have been resolved with the applicable governmental
agency and no formal action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, is
threatened.
(aa) Neither the Company nor any of
its subsidiaries, nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
(i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977; or
(iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment, except where any of the
activities set forth in clauses (i), (ii), (ii) and
(iv) would not have a Material Adverse Effect on the
Company.
(bb) None of the Company, any of its
subsidiaries or, 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
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Assets Control of the U.S. Department of the
Treasury (“ OFAC ”); and the Company will not
directly or indirectly use the proceeds of the offering of the
Shares hereunder, or lend, contribute or otherwise make available
such proceeds to any (a) subsidiary, (b) joint venture
partner or (c) other person or entity, for, in each of (a),
(b) or (c), the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(cc) The subsidiaries of the Company
set forth on Schedule I(d) hereto (the “ Excluded
Subsidiaries ”) are not “significant
subsidiaries” as such term is defined in Rule 1-02(w) of
Regulation S-X.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $19.40, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II
hereto and (b) in the event and to the extent that the
Representatives shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in clause (a) of this
Section 2, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by
the Representatives so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule II hereto
and the denominator of which is the maximum number of Optional
Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the
Underwriters the right to purchase at their election up to
11,250,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering
over-allotments in connection with the offering of the Firm Shares,
provided that the purchase price per Optional Share shall be
reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm
Shares but not payable on the Optional Shares. Any such election to
purchase Optional Shares may be exercised only by written notice
from the Representatives to the Company, given within a period of
30 calendar days after the date of this Agreement, setting forth
the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as
determined by the Representatives but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives and the Company otherwise agree in
writing, earlier than two or later than 10 business days after the
date of such notice.
3. Upon the authorization by the
Representatives of the release of the Shares, the several
Underwriters propose to offer the Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by
each Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as the
Representatives may request upon at least 48 hours’ prior
notice to the Company shall be delivered by or on behalf of the
Company to the Representatives, through the facilities of the
Depository Trust
8
Company (“ DTC ”), for the
account of such 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 48 hours in advance. The Company will
cause the certificates representing the Shares to be made available
for checking and packaging at least 24 hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the “ Designated
Office ”). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on May 18, 2009 or such other time and date as the
Representatives and the Company may agree upon in writing, and,
with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by the Representatives in the written notice
given by the Representatives of the Underwriters’ election to
purchase such Optional Shares, or such other time and date as the
Representatives and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the
“ First Time of Delivery ”, such time and date
for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the “ Second Time of
Delivery ”, and each such time and date for delivery is
herein called a “ Time of Delivery ”.
(b) The documents to be delivered at
each Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for
the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(k) hereof, will be
delivered at the offices of Shearman & Sterling LLP,
counsel for the Underwriters, at 599 Lexington Avenue, New York,
New York 10022 (the “ Closing Location ”), and
the Shares will be delivered at the Designated Office, all at such
Time of Delivery. A meeting will be held at the Closing Location at
5:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 4, “ New York Business
Day ” shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of
the 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 Securities Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement,
the Basic Prospectus or the Prospectus prior to the last Time of
Delivery 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
file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the
Securities Act; 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(a) under the Securities
Act) is required in connection with the offering or sale of the
Shares; to advise the Representatives, promptly after it receives
notice thereof, of the issuance by the
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Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Shares, 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 Securities Act, of the suspension of the
qualification of the Shares 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 the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use every reasonable
effort to obtain the withdrawal of such order; and in the event of
any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at its own
expense, as may be necessary to permit offers and sales of the
Shares by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration
statement).
(b) If required by Rule 430B(h)
under the Securities Act, to prepare a form of prospectus in a form
approved by the Representatives and to file such form of prospectus
pursuant to Rule 424(b) under the Securities Act not later than may
be required by Rule 424(b) under the Securities Act; and to make no
further amendment or supplement to such form of prospectus which
shall be disapproved by the Representatives promptly after
reasonable notice therereof.
(c) The Company will endeavor, in
cooperation with the Representatives, to qualify the Shares for
offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the
Representatives may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Shares; provided , however , that
the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Shares
have been qualified as above provided.
(d) Prior to 10:00 a.m., New York
City time, on the New York Business Day next succeeding the date of
this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in The City of
New York 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 Securities Act) is
required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have
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 Securities Act) 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 Securities Act or the
Exchange Act, to
10
notify the Representatives and upon the
Representatives’ 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; and
in case any Underwriter is required to deliver a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) in connection with sales of any of the Shares at
any time nine months or more after the time of issue of the
Prospectus, upon the Representatives’ request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as the
Representatives may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities
Act.
(e) The Company will make generally
available to its security holders (as defined in Rule 158), as soon
as practicable, but not later than forty-five (45) days after
the close of each of the first three (3) fiscal quarters of
each fiscal year and ninety (90) days after the close of each
fiscal year, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve
(12) month period beginning not later than the first day of
the fiscal quarter next following the effective date of the
Registration Statement, provided that the Company may make
such earnings statements generally available by filing quarterly
and annual reports with the Commission as may be required by the
Exchange Act.
(f) During the period beginning from
the date hereof and continuing to and including the date 90 days
after the date of the Prospectus, not to offer, sell, announce an
intention to sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any securities of the Company that are
substantially similar to the Shares, including but not limited to
any options or warrants to purchase shares of Common Stock or any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Stock or any such
substantially similar securities (other than pursuant to
(i) employee awards or 401(k) plans, each in the ordinary
course of business and consistent with past practice,
(ii) employee stock option plans existing on
