VALERO ENERGY
CORPORATION
COMMON STOCK (PAR VALUE $0.01 PER
SHARE)
To the
Representatives named in
Schedule I
hereto
of the Underwriters named in
Schedule II hereto
Valero Energy
Corporation, a Delaware corporation (the “ Company
”), proposes to issue and sell to the several Underwriters
named in Schedule II hereto (the “ Underwriters
”), for whom you are acting as representatives (the “
Representatives ”), the number of shares of its Common
Stock, par value $0.01 per share, identified in Schedule I
hereto (the “ Firm Shares ”). The Company also
proposes to issue and sell to the several Underwriters not more
than the number of shares of its Common Stock, par value $0.01 per
share, identified in Schedule I hereto, (the “
Additional Shares ”) if and to the extent that you, as
Representatives of the offering, shall have determined to exercise,
on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 1 hereof.
The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “ Shares. ” The
shares of Common Stock, par value $0.01 per share, of the Company
to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the “ Common
Stock. ” If the firm or the firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms “Underwriters”
and “Representatives,” as used herein, shall each be
deemed to refer to such firm or firms.
The Company has
prepared and filed with the Securities and Exchange Commission (the
“ Commission ”) in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
“ Securities Act ”), an automatic shelf
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a prospectus (the
“ Basic Prospectus ”) relating to the Shares.
The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Shares (the
“ Prospectus Supplement ”). The registration
statement, as amended to the date of this Agreement, including the
information, if any, deemed pursuant to Rule 430B under the
Securities Act to
be part of the
registration statement at the time of its effectiveness (the
“ Rule 430 Information ”), is hereinafter
referred to as the “ Registration Statement ”;
and as used herein, the term “ Prospectus ”
means the Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Shares in the form first
used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with the
confirmation of sales of the Shares and the term “
Preliminary Prospectus ” means the preliminary
prospectus supplement specifically relating to the Shares together
with the Basic Prospectus. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities
Act (the “ Rule 462 Registration Statement
”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462
Registration Statement. References herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act which were filed on or before the date
of this Agreement or the issue date of the Basic Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be. The
terms “ supplement ,” “ amendment
,” and “ amend ” as used herein with
respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed by the Company under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “ Exchange Act ”)
after the date of this Agreement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the
case may be, which are deemed to be incorporated by reference
therein. “ Effective Date ” shall mean each date
and time that the Registration Statement and any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective.
At or prior to the
time when sales of the Shares will be first made (the “
Time of Sale ”), the Company has prepared the
following information (collectively, the “ Time of Sale
Information ”): a Preliminary Prospectus dated
June 2, 2009 (including the documents incorporated by
reference therein as of the Time of Sale), and the information
identified in Schedule III hereto.
The Company hereby
agrees with the Underwriters as follows:
1. The
Company agrees to issue and sell the Shares to the several
Underwriters as hereinafter provided, and each Underwriter, on the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective number
of Firm Shares set forth opposite such Underwriter’s name in
Schedule II hereto at the purchase price set forth in
Schedule I hereto (the “ Purchase Price
”).
On the basis of
the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to sell
to
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the
Underwriters the Additional Shares, and the Underwriters shall have
the right to purchase, severally and not jointly, up to the number
of Additional Shares identified in Schedule I at the Purchase
Price, provided, however, that the amount paid by the Underwriters
for any Additional Shares shall be reduced by an amount per share
equal to any dividends declared by the Company and payable on the
Firm Shares but not payable on such Additional Shares. You may
exercise this right on behalf of the Underwriters in whole or from
time to time in part by giving written notice not later than
30 days after the date of this Agreement. Any exercise notice
shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be
purchased. Each purchase date must be at least one Business Day (as
defined herein) after the written notice is given and may not be
earlier than the closing date for the Firm Shares nor later than
ten Business Days after the date of such notice. Additional Shares
may be purchased as provided in Section 3 hereof solely for
the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional
Shares are to be purchased (an “ Option Closing Date
”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine)
that bears the same proportion to the total number of Additional
Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto opposite the name
of such Underwriter bears to the total number of Firm
Shares.
2. (a) The
Company understands that the several Underwriters intend
(i) to make a public offering of their respective portions of
the Shares and (ii) initially to offer the Shares upon the
terms set forth in the Time of Sale Information and the
Prospectus.
(b) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to any offering of Shares
contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person.
Additionally, no such Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult
with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and
appraisal of the transactions contemplated hereby, and such
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by such Underwriters of
the Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company. The Company agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
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3. Payment
for the Firm Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined
below) prior to the Closing Date (as defined below), on the date
and at the time and place set forth in Schedule I hereto (or
at such other time and place on the same or such other date, not
later than the fifth Business Day (as defined below) thereafter, as
you and the Company may agree in writing). As used herein, the term
“ Business Day ” means any day other than a day
on which banks are permitted or required to be closed in New York
City. The time and date of such payment and delivery with respect
to the Firm Shares are referred to herein as the “ Closing
Date .”
Payment for any
Additional Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on the date specified in the corresponding
notice described in Section 1 or at such other time on the
same or on such other date, in any event not later than
July 17, 2009 as shall be designated in writing by
you.
The Firm Shares
and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one
full Business Day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or
an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price
therefor.
4. The
Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The
Registration Statement has become effective under the Securities
Act. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated
or threatened by the Commission; as of the Effective Date, the
Registration Statement complied in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder, and did not contain and, as amended or supplemented, if
applicable, will not contain any 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 not
misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date, the Prospectus
did not contain and, as amended or supplemented, if applicable,
will not contain any 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
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therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions in the Registration Statement and the Prospectus and any
amendment or supplement thereto made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) The Time of
Sale Information at the Time of Sale and at the Closing Date did
not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in such Time of Sale Information.
(c) The Company
(including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “ issuer
free writing prospectus ” (as defined in Rule 433
under the Securities Act) (an “ Issuer Free Writing
Prospectus ”) other than (i) the documents listed on
Schedule III hereto and (ii) any other written
communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, or filed prior to
the first use of such Issuer Free Writing Prospectus, did not, and
at the Time of Sale and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus. Each Issuer Free Writing Prospectus does not
include any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement
deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based
5
upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein.
(d) The documents
(the “ Incorporated Documents ”) incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when filed with the Commission, conformed
or will conform, as the case may be, in all material respects with
the requirements of the Exchange Act.
(e) The Company
(i) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, (ii) has the corporate power and authority
to own its property and to conduct its business as described in the
Time of Sale Information and the Prospectus and (iii) 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 Company and its
subsidiaries, taken as a whole.
(f) At the time of
filing of the Registration Statement, at the earliest time
thereafter that the Company or any offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares and at the date hereof, the Company
was not and is not an “ineligible issuer” as defined in
Rule 405 under the Securities Act.
(g) Each
subsidiary of the Company which is a significant subsidiary as
defined in Rule 1-02(w) of Regulation S-X (a “
Significant Subsidiary ”) (i) has been duly
formed, is validly existing in good standing under the laws of the
jurisdiction of its formation, (ii) has the corporate, limited
liability company, limited partnership or partnership power and
authority to own its property and to conduct its business as
described in the Time of Sale Information and the Prospectus and
(iii) 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 Company and its subsidiaries, taken as a
whole.
(h) This Agreement
has been duly authorized, executed and delivered by the
Company.
(i) The authorized
capital stock of the Company conforms as to legal matters to the
description thereof contained in the Time of Sale Information and
the Prospectus.
6
(j) The Shares
have been duly authorized, and, when issued and delivered pursuant
to this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
(k) The execution
and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement, will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement, indenture or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency that has not
already been obtained is required for the performance by the
Company of its obligations under this Agreement, except such as may
be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Shares.
(l) Neither the
Company nor any of its subsidiaries is in violation of its
corporate charter or by-laws or other constitutive document or in
default under any agreement, indenture or instrument, which default
could reasonably be expected to have a material adverse effect on
the business, properties, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole,
and no event or condition has occurred or exists which, with the
giving of notice or the lapse of time or both, would result in any
such violation or default which would have such an effect. Except
as described in the Time of Sale Information and the Prospectus,
neither the Company nor any of its subsidiaries is in violation of
any law, ordinance, governmental rule or regulation or court decree
to which it may be subject, which violation could reasonably be
expected to have a material adverse effect on the business,
properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(m) There has not
occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Information and the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of
this Agreement).
(n) There are no
legal or governmental investigations or proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company
or
7
any of its
subsidiaries is subject, that are required to be described in the
Registration Statement, the Time of Sale Information or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement, the Time of Sale Information or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(o) Each
preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder.
(p) The Company is
not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the
Time of Sale Information and the Prospectus will not be, required
to register as an “ investment company ” as such
term is defined in the Investment Company Act of 1940, as
amended.
(q) All licenses,
permits, consents, certificates of need, authorizations,
certifications, accreditations, franchises, approvals, grants of
rights by, or filings or registrations with, any federal, state,
local or foreign court or governmental or public body, authority,
or other instrumentality or third person (including without
limitation the Federal Energy Regulatory Commission (“
FERC ”)) (any of the foregoing a “
License ”) necessary for the Company and its
subsidiaries to own, build, maintain or operate their respective
businesses or properties have been duly authorized and obtained,
and are in full force and effect, except where the failure to so be
obtained or in effect would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; and the Company and its subsidiaries are in
compliance in all material respects with all provisions thereof; no
event has occurred which permits (or with the passage of time would
permit) the revocation or termination of any License, or which
could result in the imposition of any restriction thereon, which is
of such a nature or the effect of which would reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole; no material License is the subject
of any pending or, to the best of the Company’s knowledge,
threatened challenge or revocation which, if such License were
revoked, would reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole; the
Company and its subsidiaries are not required to obtain any
material License that has not already been obtained from, or effect
any material filing or registration that has not already been
effected with, the FERC or any other federal, state or local
regulatory authority in connection with the execution and delivery
of this Agreement; and except, in each case, as described in the
Time of Sale Information and the Prospectus (exclusive
of
8
any amendments
or supplements thereto subsequent to the date of this
Agreement).
(r) The Company
and its 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 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 Company and its subsidiaries, taken as a
whole; and except, in each case, as described in the Time of Sale
Information and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement).
(s) Except as
described in the Time of Sale Information and the Prospectus
(exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement), there are no costs or liabilities
associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(t) The Company
has prepared its financial statements on a consistent basis in
accordance with generally accepted accounting
principles.
(u) The Company
and its subsidiaries have good and indefeasible title to all items
of real property and good and defensible title to all personal
property owned by them and the right to use all other property used
or proposed to be used by them in the ordinary course of business,
in each case free and clear of all liens, encumbrances and defects
except such as are described or referred to in the Time of Sale
Information and the Prospectus or such as do not materially
adversely affect the value of such property and do not unreasonably
interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not
9
unreasonably
interfere with the use made or proposed to be made of such property
and buildings by the Company or its subsidiaries.
(v) Immediately
after any sale of Shares by the Company hereunder, the aggregate
initial offering price of Shares which have been issued and sold by
the Company hereunder and of any securities of the Company (other
than the Shares) that shall have been issued and sold pursuant to
the Registration Statement will not exceed the aggregate initial
offering price of securities registered under the Registration
Statement.
5. The
Company covenants and agrees with each of the several Underwriters
as follows:
(a) to file the
Preliminary Prospectus in a form approved by you pursuant to
Rule 424 under the Securities Act as required by
Rule 424(b); to file the Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act not later than
the Commission’s close of business on the second Business Day
following the date of determination of the offering price of the
Shares or, if applicable, such earlier time as may be required by
Rule 424(b) and Rule 430B under the Securities Act; and to
file any Issuer Free Writing Prospectus to the extent required by
Rule 433 under the Securities Act;
(b) to furnish to
you, without charge, five conformed copies of the Registration
Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during
the period mentioned in Section 5(f) or 5(g) below, as many copies
of the Prospectus and each Issuer Free Writing Prospectus (if
applicable) and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request;
(c) from the date
hereof and prior to the Closing Date, or the Option Closing Date,
as the case may be, to furnish to you a copy of each proposed free
writing prospectus, any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not
to file any such proposed free writing prospectus, amendment or
supplement to which you reasonably object;
(d) not to take
any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder;
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(e) 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 is required in
connection with the offering or sale of the Shares, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for
that purpose, and (iv) of the receipt by the Company of any
notification with respect to any suspension of the qualification of
the Shares for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(f) if at any time
prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would 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, not misleading or (ii) it is
necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will promptly notify the Underwriters
thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required)
and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to
the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law;
(g) if, during
such period after the first date of the public offering of the
Shares as in the opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities
Act) is delivered to a purchaser, not misleading, or if it is
necessary
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