Becton,
Dickinson and Company
Goldman,
Sachs & Co.,
Morgan Stanley & Co. Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Becton,
Dickinson and Company, a New Jersey corporation (the
“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) an
aggregate of $500,000,000 principal amount of the 5.00% Notes due
May 15, 2019 (the “2019 Securities”) and
$250,000,000 principal amount of the 6.00% Notes due May 15, 2039
(the “2039 Securities”) of the Company, specified above
(collectively, the “Securities”).
1. The
Company 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 “Act”) on Form S-3 (File No. 333-159102) in
respect of the Securities 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, to 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
1
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 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 but
excluding Form T-1 and including any prospectus supplement relating
to the Securities 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 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 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 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 Securities filed with the Commission pursuant to
Rule 424(b) under the 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 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 of 1939, as
amended (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
-2-
information
furnished in writing to the Company by an Underwriter expressly for
use therein;
(c) For
the purposes of this Agreement, the “Applicable Time”
is 2:00 pm (Eastern time) on the date of this Agreement; the
Pricing Prospectus as supplemented by the final term sheets
prepared and 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 II(a) hereto does not
conflict with the information contained in the Registration
Statement, the Pricing Prospectus or 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 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 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 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 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 II(b) hereto;
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(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 expressly for
use therein;
(f) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any 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, which
event is material to the Company and its subsidiaries, taken as a
whole; 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 (other than the
repurchase of shares pursuant to Rule 10b-18 of the Exchange
Act and the issuance of shares under the Company’s employee
benefit or stock purchase plans or upon conversion of outstanding
convertible debt of the Company) or long term obligations of the
Company and its subsidiaries which are material taken as a whole 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 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 New
Jersey, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification; and
each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation and is duly qualified as a
foreign corporation for the transaction of business and in good
standing under the laws of each other jurisdiction in
-4-
which it
owns or leases properties, or conducts any business, so as to
require such qualification, except in those instances with respect
to the Company and its subsidiaries where failure to be so
qualified would not have a material adverse effect on the business
or financial condition of the Company and its subsidiaries taken as
a whole;
(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 and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors’ qualifying shares and minority
interests reflected in the Company’s consolidated financial
statements included or incorporated in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(i) The
Securities have been duly authorized and, when issued and delivered
pursuant to this Agreement, 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 dated as of March 1, 1997 (the
“Indenture”) between the Company and The Bank of New
York Mellon (as successor to JPMorgan Chase Bank, N.A.) as Trustee
(the “Trustee”), under which they are to be issued,
which is substantially in the form filed as an exhibit to the
Registration Statement or such other form as shall have previously
been agreed to by you; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes 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 Securities and the Indenture will
conform to the descriptions thereof in the Pricing Disclosure
Package and the Prospectus;
(j) 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 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 or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or Bylaws of the Company
or any statute or any order, rule or regulation of any
-5-
court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective 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 Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or the Indenture except such as have been 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 Securities by the
Underwriters;
(k) The
statements set forth in the Prospectus under the caption
“Description of Notes” insofar as they purport to
constitute a summary of the terms of the Securities, and under the
caption “Underwriting”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(l) 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
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;
(m) 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”);
(n)
(A) (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), and (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 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 (B) 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)
-6-
under the
Act) of the Securities, the Company was not an “ineligible
issuer” as defined in Rule 405 under the Act;
(o) Ernst
& Young LLP, who have certified certain financial statements of
the Company and its subsidiaries and have audited the
Company’s internal control over financial reporting, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(p) 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 believes its internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting;
(q) Since
the date of the latest audited financial statements included or
incorporated by reference 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;
(r) 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
such disclosure controls and procedures are effective;
(s) Neither
the Company nor any of its subsidiaries or affiliates, nor, to the
Company’s knowledge, any director, officer, employee, agent
or representative of the Company or of any of its subsidiaries or
affiliates, has taken or will take any action on behalf of the
Company in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly,
to any “government official” (including any officer or
employee of a government or government-owned or controlled entity
or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or
any political party or party official or candidate for political
office) to influence official action or secure an improper
advantage in favor of the Company; and the Company and its
subsidiaries and affiliates have conducted
-7-
their
businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with such
laws and with the representation and warranty contained herein,
except in each case, as would not be expected to have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(t) To
the Company’s knowledge, the operations of the Company and
its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as
amended by Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable
anti-money laundering statutes of jurisdictions where the Company
and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Anti-Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened; and
(u)
(i) The Company represents that neither the Company nor any of
its subsidiaries (collectively, the “Entity”) or, to
the knowledge of the Entity, any director or officer of the Entity,
is an individual or entity (“Person”) that is, or is
owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”) (collectively, “Sanctions”),
nor
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan and Syria);
(ii) The
Entity represents and covenants that, except pursuant to
appropriate government authorization or as exempted from such
regulation, it will not, directly or indirectly, use the proceeds
of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(A) to
fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
-8-
(B) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise);
(iii) The
Entity represents and covenants that, except pursuant to
appropriate government authorization or as exempted from such
regulation, for the past three (3) years, it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
2. Subject
to the terms and conditions herein set forth, 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 of 98.698% of the principal amount
thereof for the 2019 Securities and 98.109% of the principal amount
thereof for the 2039 Securities, plus accrued interest, if any,
from May 15, 2009 to the Time of Delivery (as defined below)
hereunder, the principal amount of Securities set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon
the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) 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 Goldman, Sachs & Co., 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 Goldman, Sachs & Co. at
least forty-eight hours in advance, by causing DTC to credit the
Securities to the account of Goldman, Sachs & Co. at DTC. The
Company will cause the certificates representing the Securities to
be made available to Goldman, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery (as defined below)
at the office of DTC or its designated custodian (the
“Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
May 15, 2009 or such other time and date as Goldman, Sachs
& Co. and the Company may agree upon in writing. Such time and
date are herein called the “Time of
Delivery”.
(b) The
documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including
the cross-receipt for the Securities and any additional documents
requested by the
-9-
Underwriter
pursuant to Section 8(h) hereof, will be delivered at the offices
of Sullivan & Cromwell LLP, 125 Broad Street, New York, New
York 10004 (the “Closing Location”), and the Securities
will be delivered at the Designated Office, all at the 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 the 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 New York
City 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 you 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 date of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to the Time of Delivery which
shall be disapproved by you promptly after reasonable notice
thereof; to advise you, 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 you with copies
thereof; to prepare final term sheets, containing solely a
description of the Securities, in a form approved by you and to
file such term sheets pursuant to Rule 433(d) under the Act within
the time required by such Rule; to file promptly all other material
required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the 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
Act) is required in connection with the offering or sale of the
Securities; to advise you, 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 Preliminary
Prospectus or other prospectus in respect of 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 the 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 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 its
best
-10-
efforts 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 Securities 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 Act, to prepare a form of
prospectus in a form approved by you and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may
be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be
disapproved by you promptly after reasonable notice
therereof;
(c) If
by the third anniversary (the “Renewal Deadline”) of
the initial effective date of the Registration Statement, any of
the Securities remain unsold by the Underwriters, the Company will
file, if it has not already done so and is eligible to do so, a new
automatic shelf registration statement relating to the Securities,
in a form satisfactory to you. If at the Renewal Deadline the
Company is no longer eligible to file an automatic shelf
registration statement, the Company will, if it has not already
done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to you and will use its best
efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The
Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue
as contemplated in the expired registration statement relating to
the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may
be;
(d) Promptly
from time to time to take such action as you may reasonably request
to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may 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 the 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;
(e) To
furnish the Underwriters with written and electronic copies of the
Prospectus in such quantities as you may from time to time
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 prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event
shall have occurred as a
-11-
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 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 you and upon your 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 you
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 Act) in connection with sales
of any of the Securities at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(f) To
make generally available to its securityholders as soon as
practicable, but in any event not later than sixteen 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 under the Act);
(g) During
the period beginning from the date hereof and continuing to and
including the later of the Time of Delivery and such earlier time
as you may notify the Company, 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 Time of Delivery and which are substantially similar to the
Securities;
(h) To
pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) under the Act
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) under the Act; and
(i) 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”.
-12-
(a) (i) The
Company represents and agrees that, other than the final term
sheets prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of Goldman, Sachs & Co., 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 Goldman, Sachs & Co., other than one or more
term sheets relating to the Securities containing customary
information and conveyed to purchasers of Securities, it has not
made and will not make any offer relating to the Securities that
would constitute a free writing prospectus; and
(iii) any
such free writing prospectus the use of which has been consented to
by the Company and Goldman, Sachs & Co. (including the final
term sheets prepared and filed pursuant to Section 5(a) hereof) is
listed on Schedule II(a) hereto;
(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 Pr
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