Exhibit 1
MERCK & CO.,
INC.
1.875% Notes due 2011
4.000% Notes due 2015
5.000% Notes due 2019
5.850% Notes due 2039
Underwriting
Agreement
June 22, 2009
J.P. Morgan Securities
Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
RBS Securities Inc.
As
representatives of the several Underwriters
named
in Schedule I hereto,
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Merck & Co., Inc., a New
Jersey corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
firms named in Schedule I hereto (the “Underwriters”),
for whom you are acting as representatives (the
“Representatives”), an aggregate of $1,250,000,000
principal amount of its 1.875% Notes due 2011 (the “2011
Notes”), an aggregate of $1,000,000,000 principal amount of
its 4.000% Notes due 2015 (the “2015 Notes”), an
aggregate of $1,250,000,000 principal amount of its 5.000% Notes
due 2019 (the “2019 Notes”) and an aggregate of
$750,000,000 principal amount of its 5.850% Notes due 2039 (the
“2039 Notes”) (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. 333-160134) 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 the registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission and
no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the
Company; the basic prospectus filed as part of such registration
statement, in the form in which it has been most recently 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 Securities filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, is hereinafter called a
“Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the
registration statement became effective 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
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be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is 4:30 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus, as
supplemented by the information contained in the final term sheet
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 the
Pricing Disclosure Package or any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(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; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein; and no such documents were filed with the Commission since
the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule 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 the Registration Statement and any amendment
thereto, as of the date of this Agreement as to the Registration
Statement, and as of its date and as of the Time of Delivery as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided , however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives 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 material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any material change in the consolidated capital stock or any
material increase in the consolidated long-term debt of the Company
and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries 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 New Jersey, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Pricing Prospectus and the
Prospectus;
(h) Each of the subsidiaries 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 and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of its property requires such
qualification, except where failure to qualify would not have a
materially adverse effect upon the Company and its consolidated
subsidiaries taken as a whole;
(i) The Securities have been duly
authorized, and, when issued and delivered pursuant to this
Agreement, such Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, dated as of April 1, 1991, as
supplemented by the First Supplemental Indenture, dated as of
October 1, 1997, between
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the Company and U.S. Bank Trust
National Association, formerly known as First Trust of New York,
National Association, as successor Trustee (the
“Indenture”), which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust
Indenture Act and, at the Time of Delivery for such Securities (as
defined in Section 4(a) hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Indenture conforms, and the
Securities will conform, to the descriptions thereof contained in
the Pricing Disclosure Package and the Prospectus;
(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, or result in the creation or imposition of any lien,
charge, or encumbrance upon any of the property or assets of the
Company or its subsidiaries pursuant to the terms of 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 or
By-laws of the Company or any statute, order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their 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) 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, other than as set forth in
the Pricing Prospectus and the Prospectus and other than litigation
incident to the kind of business conducted by the Company and its
subsidiaries 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, stockholders’ equity or results of
operations of the Company and its subsidiaries; and, to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(l) (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
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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) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act; and
(m) The financial statements of the
Company and its consolidated subsidiaries included in the
Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related schedules and notes, 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. The selected financial data and the summary
financial information of the Company and its consolidated
subsidiaries included in the Prospectus and the supporting
schedules, if any, included in the Registration Statement present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Registration Statement, and the pro forma financial
information, together with the related notes thereto included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus and the Prospectus have been prepared in
accordance with applicable requirements of the Act and the Exchange
Act and the assumptions underlying such pro forma financial
information are reasonable and are set forth or incorporated by
reference in the Registration Statement, Pricing Prospectus and the
Prospectus.
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 99.726% of the principal amount thereof in the
case of the 2011 Notes, at a purchase price of 99.248% of the
principal amount thereof in the case of the 2015 Notes, at a
purchase price of 98.919% of the principal amount thereof in the
case of the 2019 Notes and at a purchase price of 98.927% of the
principal amount thereof in the case of the 2039 Notes, the
principal amounts of Securities, as applicable, set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the
Representatives of the release of such Securities, the several
Underwriters propose to offer such 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 J.P. Morgan Securities Inc.,
for
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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 J.P. Morgan Securities Inc. at least
forty-eight hours in advance, by causing DTC to credit the
Securities to the account of J.P. Morgan Securities Inc. at DTC.
The Company will cause the certificates representing the Securities
to be made available to J.P. Morgan Securities Inc. 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
June 25, 2009 or such other time and date as J.P. Morgan
Securities Inc. 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
Underwriters pursuant to Section 8(j) hereof, will be
delivered at the offices of Davis Polk & Wardwell, 450
Lexington Avenue, New York, NY 10017 (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 3 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 the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the 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 for such
Securities 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 you with copies thereof;
to prepare a final term sheet, containing solely a description of
the Securities, in a form approved by you and to file such term
sheet 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 such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any
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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 such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best 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 with respect to the offering of any Securities, to
prepare a form of prospectus in a form approved by you and to file
information in 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
information relating to the Securities or the offering thereof in
such form of prospectus which shall be reasonably disapproved by
you promptly after reasonable notice thereof;
(c) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify such Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and
to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(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 New York
City in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required at
any time prior to the expiration of nine months after the time of
issuance 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 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
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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; 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;
(e) 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)), 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);
(f) During the period beginning from
the date hereof and continuing to and including the earlier of
(i) the termination of trading restrictions for such
Securities, as notified to the Company by the Representatives, and
(ii) the Time of Delivery for such Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to such Securities,
without the prior written consent of the Representatives;
and
(g) To pay the required Commission
filing fees relating to the Securities within the time required by
Rule 456(b)(1) under the Act and otherwise in accordance with Rules
456(b) and 457(r) under the Act.
6. (a) The Company represents and
agrees that, other than the final term sheet prepared and filed
pursuant to Section 5(a) hereof, without the prior consent of
the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the
Act;
(b) Each Underwriter represents and
agrees that, without the prior consent of the Company and the
Representatives, other than the final term sheet referred to in
clause (a) above or one or more preliminary 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 an
Issuer Free Writing Prospectus or a free writing prospectus that
would otherwise be required to be filed with the
Commission;
(c) Any such free writing prospectus
the use of which has been consented to by the Company and the
Representatives (including the final term sheet prepared and filed
pursuant to Section 5(a) hereof) is listed on Schedule II(a)
hereto;
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(d) 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
(e) The Company agrees that if at
any time following issuance of an Issuer Free Writing Prospectus
any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will
prepare and furnish without charge to each Underwriter an Issuer
Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided , however ,
that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees
with the several Underwriters that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any agreement or
memorandum among Underwriters, this Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(c) hereof, including
the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any
filing fees incident to any required review by the Financial
Industry Regulatory Authority, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; but the Company shall
not in any event be liable to any of the Underwriters for damages
on account of loss of anticipated profits from the sale by them of
the Securities. It is understood, however, that, except as provided
in this Section, Section 9 and Section 12 hereof, the
Underwriters will pay all of th
