To the
Representatives of the several
Underwriters named in Schedule I hereto
DTE Energy
Company, a Michigan corporation (the “Company”)
proposes to issue and sell severally to the firms named in
Schedule I hereto (such firms constituting the
“Underwriters”) $300,000,000 aggregate principal amount
of the Company’s 2009 Series A 7.625% Senior Notes due
2014 with the terms specified in Schedule II hereto (the
“Securities”). The Securities will be issued pursuant
to the provisions of an Indenture, dated as of April 9, 2001,
as supplemented, and as to be supplemented by a Supplemental
Indenture establishing the Securities (the
“Indenture”), between the Company and The Bank of New
York Mellon Trust Company, N.A., (successor to The Bank of New
York), as Indenture Trustee (the “Indenture
Trustee”).
1. Subject to
the terms and conditions set forth herein, 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 time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal
amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto. The sale of the Securities
will be made to the Underwriters, for whom the firms designated as
representatives of the Underwriters of such Securities in
Schedule II hereto will act as representatives (the
“Representatives”). The obligations of the Underwriters
under this Agreement shall be several and not joint.
2. The
Company represents and warrants to, and agrees with, each of the
Underwriters, on and as of the date hereof and the Time of Delivery
(as defined in Section 4) that:
(a) A
registration statement on Form S-3 (No. 333-136815) with
respect to the Securities and other securities, copies of which
have been delivered to the Underwriters, has been prepared and
filed by the Company with the Securities and Exchange Commission
(the “Commission”). Such registration statement,
including a prospectus, became effective under the Securities Act
of 1933, as amended (the “Act”) immediately upon filing
and no stop order suspending its effectiveness and/or notice
objecting to its use has been issued and no proceeding for that
purpose or pursuant to Section 8A of the Act against the
Company or related to the offering has been initiated or, to the
best knowledge of the Company, threatened by the Commission. The
term “Registration Statement,” at any given time, means
such registration statement, including any amendments thereto and
any prospectus relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such
Registration Statement pursuant to Rule 430B under the Act at
such time. Each date the Registration Statement or any amendment
(or any part thereof) is considered to have become effective as to
the Underwriters pursuant to Section 11(d) of the Act and
Rule 430B(f) promulgated thereunder
is herein
called the “Effective Date.” The base prospectus
included in the Registration Statement relating to the Securities
and certain other issues of securities (exclusive of any supplement
filed pursuant to Rule 424 under the Act) is herein called the
“Basic Prospectus.” The Basic Prospectus as amended and
supplemented by a preliminary prospectus supplement dated
May 6, 2009 relating to the Securities immediately prior to
the Applicable Time (as defined below) is hereinafter called the
“Preliminary Prospectus.” The Company proposes to file
together with the Basic Prospectus and pursuant to Rule 424
under the Act a final prospectus supplement specifically related to
the Securities and reflecting the terms of the Securities and plan
of distribution arising from this Agreement (herein called the
“Final Prospectus Supplement”) and has previously
advised the Underwriters of all the information to be set forth
therein. The term “Prospectus” means the Basic
Prospectus together with the Final Prospectus Supplement, as first
filed with the Commission pursuant to Rule 424.
Any reference
herein to the Registration Statement, Basic Prospectus, the
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein, or
deemed to be incorporated by reference therein, and filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the date of such Registration Statement,
Basic Prospectus, Preliminary Prospectus or Prospectus, as
applicable; any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, Basic Prospectus, Preliminary
Prospectus or Prospectus shall be deemed to refer to and include,
without limitation, the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date
of such Registration Statement, Basic Prospectus, Preliminary
Prospectus or Prospectus.
For purposes of
this Agreement, the “Applicable Time” is 1:46 p.m. (New
York time) on the date of this Agreement; the documents listed on
Schedule V hereto, taken together, are collectively referred
to as the “Pricing Disclosure Package”.
(b) The
documents incorporated by reference in the Registration Statement,
Pricing Disclosure Package or 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 in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the
Registration Statement, Pricing Disclosure Package or 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, in the light of the circumstances under which
they were made, not misleading;
(c) The
Registration Statement, the Permitted Free Writing Prospectus, the
Preliminary Prospectus and the Prospectus conform, and any further
amendments or supplements thereto will conform, in all material
respects, to the requirements of the Act and the Trust
2
Indenture Act
of 1939, as amended (the “Trust Indenture Act”), and
the respective rules and regulations of the Commission thereunder
and (A) the Registration Statement does not, and as of each
Effective Date and the effective date of any amendment thereto 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, (B) the Pricing
Disclosure Package did not, as of the Applicable Time, contain an
untrue statement of a material fact or omit to state a material
fact required to stated therein or necessary to make the statements
therein, not misleading, and (C) the Prospectus, as of its
date, does not, and as of the respective dates of any amendment or
supplement thereto and at the Time of Delivery, 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, in light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to (i) 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 in the
Registration Statement, Pricing Disclosure Package or Prospectus or
(ii) those parts of the Registration Statement which
constitute the Forms T-1;
(d) Any
Permitted Free Writing Prospectus listed on Schedule V hereto
does not include anything that conflicts with the information
contained in the Registration Statement, Preliminary Prospectus or
Prospectus;
(e) At
the determination date for purposes of the Securities within the
meaning of Rule 164(h) under the Act, the Company was not an
“ineligible issuer” as defined in Rule 405 under
the Act; the Company meets the requirements for use of Form S-3
under the Act and was and is eligible to register and issue the
Securities as a “well-known seasoned issuer” as defined
in Rule 405 under the Act; the Company has paid the
registration fee for this offering pursuant to Rule 456(b)(1)
under the Act or will pay such fees within the time period required
by such rule (without giving effect to the proviso therein) and in
any event prior to the Time of Delivery;
(f) Neither
the Company nor any of its Significant Subsidiaries (as defined
below) has sustained, since the date of the Company’s latest
audited financial statements included or incorporated by reference
in the Registration Statement, Pricing Disclosure Package and
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 Disclosure Package and Prospectus;
and, since the respective dates as of which information is given in
the Registration Statement, Pricing Disclosure Package and the
Prospectus, there has not been any material 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 either case not
in the ordinary course of business), in or affecting the general
affairs, management, financial position, shareholders’ 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 Disclosure Package and Prospectus; “Significant
Subsidiary” shall mean each subsidiary listed on
Schedule III hereto; the only subsidiaries of the Company are
(i) those subsidiaries listed on Schedule III and
(ii) certain other subsidiaries which, considered in the
aggregate as a single subsidiary, do not constitute a
“significant subsidiary” as defined in Rule 1-02
of Regulation S-X of the rules and regulations under the
Act;
3
(g) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Michigan, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Disclosure Package and Prospectus; and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the current or future consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole;
and, except as described in the Registration Statement, Pricing
Disclosure Package and the Prospectus, the Company holds all
material licenses, certificates and permits (or has applications
pending) from governmental authorities necessary for the conduct of
its business;
(h) Each
Significant Subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the power and
authority (corporate and other) to own its property and to conduct
its business as described in the Pricing Disclosure Package and
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the current or future consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, except as described in
the Registration Statement, Pricing Disclosure Package and the
Prospectus, each Significant Subsidiary of the Company holds all
material licenses, certificates and permits (or has applications
pending) from governmental authorities necessary for the conduct of
its business;
(i) The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and 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;
(j) This
Agreement has been duly authorized, executed and delivered by the
Company;
(k) The
Securities have been duly authorized and, when issued and
authenticated pursuant to the Indenture and delivered pursuant to
this Agreement, will have been duly executed, authenticated, issued
and delivered, will be entitled to the benefits of the Indenture,
and will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, or other laws of general applicability
relating to or affecting creditors’ rights and
(ii) general equity principles; the Indenture has been duly
authorized and qualified under the Trust Indenture Act and, at the
Time of Delivery (as defined in Section 4 hereof), will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization or
other laws of general applicability relating to or affecting
creditors’ rights and (ii) general equity principles;
and the Indenture will conform to the description thereof contained
in the Pricing Disclosure Package and Prospectus;
4
(l) The
issue and sale of the Securities and the execution, delivery and
performance of and the compliance by the Company with all of the
provisions of this Agreement, the Securities and the Indenture 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 material contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other material agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the properties or assets of the Company
is subject, nor will such action result in any violation of
(1) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company
or any of its properties, except for a violation that could not
reasonably be expected to have a material adverse effect on the
current or future consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; or (2) the provisions
of the Amended and Restated Articles of Incorporation or Bylaws of
the Company; 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, the execution, delivery, performance of and
compliance by the Company with all of the provisions of this
Agreement or the Indenture, or the consummation by the Company of
the transactions contemplated by this Agreement, the Securities or
the Indenture, except such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(m) The
statements set forth in the Pricing Disclosure Package and
Prospectus under the captions “Description of Debt
Securities” and “ Description of Notes” (or
similar captions), insofar as they purport to constitute a summary
of the terms of the Securities and, if applicable, under the
caption “Taxation” (or similar caption) 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 summaries in all material
respects;
(n) Neither
the Company nor any of its Significant Subsidiaries is (i) in
violation of the Amended and Restated Articles of Incorporation or
Bylaws, in the case of the Company, or as the case may be, the
articles of incorporation or other equivalent document, or bylaws,
in the case of each Significant Subsidiary, or, (ii) except
for any default which would not reasonably be expected to have a
material adverse effect on the current or future consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole, 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;
(o) Other
than as set forth in the Pricing Disclosure Package and 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 of
their properties 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 current or
future consolidated financial position,
shareholders’
5
equity or
results of operations of the Company and its subsidiaries, taken as
a whole, and, other than as set forth in the Pricing Disclosure
Package and Prospectus, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(p) The
Company is not and, after giving effect to the offering and sale of
the Securities, will not be, an “investment company”,
as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(q) Deloitte
& Touche LLP, who audited the audited financial statements and
supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, Pricing Disclosure Package and the
Prospectus, is an independent registered public accounting firm
with respect to the Company and its consolidated subsidiaries as
required by the Act and the rules and regulations
thereunder;
(r)
(i) There is and has been no material failure on the part of
the Company or any of the Company’s directors or officers, in
their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to
loans.
(ii)
The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal controls over financial reporting are
effective and the Company is not aware of any material weakness in
its internal controls over financial reporting.
(iii)
The Company maintains “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e)
under the Exchange Act); based on an evaluation carried out by
management of the Company, the Company has concluded that such
disclosure controls and procedures are effective.
(s) The
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, Pricing Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, cash flows and shareholders’ equity of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved. The Company has no material contingent obligation
which is not disclosed in the Registration Statement, Pricing
Disclosure Package and the Prospectus; the supporting schedules, if
any, included in the Registration Statement, Pricing Disclosure
Package
6
and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein; and
(t) Other
than as set forth in the Pricing Disclosure Package and Prospectus,
the Company and its Significant Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) have received (or have pending) all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the current or future consolidated financial
position, shareholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole.
3. Upon the
execution of this Agreement, the several Underwriters propose to
offer the Securities for sale upon the terms and conditions set
forth in Schedule II hereto and contemplated by this Agreement
and the Pricing Disclosure Package.
4. The
Securities to be purchased by each Underwriter pursuant to this
Agreement, in fully registered global form registered in the name
of Cede & Co., shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter,
against payment therefor by such Underwriter or on its behalf of
the purchase price therefor, all at the place, time and date
specified in Schedule II hereto or at such other place, time
and date as the Representatives and the Company may agree upon in
writing, such time, date and place being herein called the
“Time of Delivery”.
5. (a) The
Company represents and agrees that, 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, other than a Permitted Free Writing Prospectus (as defined
below); each Underwriter, severally and not jointly, 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” as defined in Rule 405 under the
Act, other than a Permitted Free Writing Prospectus or a free
writing prospectus that is not required to be filed by the Company
pursuant to Rule 433 under the Act (for the avoidance of
doubt, the Underwriters are authorized to use the information
contained in the pricing term sheet prepared and filed pursuant to
Section 5(b) hereof relating to the final terms of the Securities
in communications conveying information relating to the offering to
investors); any such free writing prospectus (which shall include
the pricing term sheet discussed in Section 5(b) hereof), the use
of which has been consented to by the Company and the
Representatives, is listed on Schedule V hereto and is herein
called a “Permitted Free Writing
Prospectus”;
(b) The
Company agrees to prepare a term sheet specifying the terms of the
Securities, substantially in the form of Schedule V hereto and
approved by the Representatives,
7
and to file
such term sheet pursuant to Rule 433(d) under the Act within the
time period prescribed by such Rule;
(c) The
Company and the Representatives have complied and will comply with
the requirements of Rule 433 under the Act applicable to any
free writing prospectus, including timely Commission filing where
required and legending;
(d) The
Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event occurred or occurs as a
result of which (i) such Permitted Free Writing Prospectus
would conflict with the information in the Registration Statement,
Preliminary Prospectus or Prospectus or (ii) the Pricing
Disclosure Package would contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, then
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 a free writing prospectus or
other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or
omission.
6. The
Company agrees with each of the Underwriters:
(a) To
prepare the Preliminary Prospectus and Prospectus in relation to
the Securities in a form approved by the Representatives and to
file such Preliminary Prospectus and 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 hereof, or if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement, Preliminary Prospectus or
Prospectus after the date hereof and prior to the Time of Delivery
unless the Company has furnished the Representatives for such
Securities with a copy for their review and comment a reasonable
time period prior to filing and has reasonably considered any
comments of the Representatives; to advise the Representatives
promptly of any such amendment or supplement after the Time of
Delivery and to furnish the Representatives with copies thereof in
such quantities as the Representatives may reasonably request; 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 for so long as the delivery of a prospectus (or the notice
referred to in Rule 173(a) 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 (i) the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, (ii) 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 or any notice
objecting to its use, (iii) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (iv) the initiation or threatening of any
proceeding for any such purpose, or (v) any request by the
Commission for the amending or supplementing of the Registration
Statement, Pricing Disclosure Package or Prospectus or for
additional information (including receipt of any comments of the
Commission on any of the foregoing); 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
8
such
qualification, to promptly use every reasonable effort 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 the Securities for offering and sale
under the securities laws of such jurisdictions as the
Representatives may request and to comply, so far as it is able,
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 as a securities dealer or to
file a general consent to service of process in any jurisdiction or
to comply with any other requirements deemed by the Company to be
unduly burdensome;
(c) Prior
to 3:00 p.m., New York City time, on the business day next
succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus as then
amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus (or 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 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 is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such
compliance;
(d) To
make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company
and its consolidated 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); and
(e) During
the period beginning on the date hereof and continuing to and
including the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company
which mature more than one year after the Time of Delivery and
which are substantially similar to the Securities, without the
prior written consent of the Representatives.
7. The
Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the
reasonable 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 reasonable expenses in
connection with the preparation, printing and
9
filing of the
Registration Statement, any Preliminary Prospectus, the Pricing
Disclosure Package and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
Agreement, the Indenture (including any amendment or supplement
thereto), any Blue Sky and legal investment memoranda, closing
documents (including any compilations ther
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