Exhibit 1.1
Tenet Healthcare
Corporation
Mandatory Convertible Preferred
Stock
Underwriting
Agreement
September 22, 2009
Goldman, Sachs &
Co.,
As representative of the several
Underwriters
named in Schedule I
hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Tenet Healthcare Corporation, a
Nevada corporation (the “ Company ”), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the “
Underwriters ”) an aggregate of 300,000 shares (the
“ Firm Securities ”) and, at the election of the
Underwriters, up to 45,000 additional shares (the “
Optional Securities ”) of 7.00% mandatory convertible
preferred stock, par value $0.15 per share (“ Preferred
Stock ”), of the Company (the Firm Securities and the
Optional Securities that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the
“ Securities ”). The Securities will be
convertible into common stock, par value $0.05 per share (“
Common Stock ”) of the Company, as set forth in the
certificate of designation for the Preferred Stock (the “
Certificate of Designation ”) to be filed with the
Secretary of State of the State of Nevada. Concurrently with the
proposed issuance of the Securities hereunder, the Company intends
to repurchase up to $300,000,000 aggregate principal amount of its
senior notes through public or privately negotiated transactions,
subject to the completion of the offering of the Securities
hereunder (the “ Note Repurchase ”).
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. 333-160674) in respect of the Securities
and shares of Common Stock issuable upon conversion thereof has
been filed with the Securities and Exchange Commission (the “
Commission ”) not earlier than three years prior to
the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no
1
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 base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called
the “ Basic Prospectus ”; any preliminary
prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act is hereinafter called a “
Preliminary Prospectus ”; the various parts of such
registration statement, including all exhibits thereto but
excluding Form T-1 and including any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“ Pricing Prospectus ”; the form of the final
prospectus relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the “
Prospectus ”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Securities is hereinafter called an
“ Issuer Free Writing Prospectus ”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however , that
this
2
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 Goldman, Sachs & Co. expressly
for use therein;
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 9:15 a.m.
(Eastern time) on the date of this Agreement. The Pricing
Prospectus, as supplemented by 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 an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(d) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however ,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. 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;
3
(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 rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each
part of the Registration Statement and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however ,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(f) Except as otherwise disclosed in
the Pricing Prospectus, subsequent to the respective dates as of
which information is given in the Pricing Prospectus:
(i) there has been no material adverse change, or any
development that could reasonably be expected to result in a
material adverse change, in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (any such change is
called a “ Material Adverse Change ”);
(ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock;
(g) The Company has been duly
organized, is validly existing as a corporation in good standing
under the laws of the State of Nevada and has the requisite power
and authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties, and is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction where the operation,
ownership or leasing of property or the conduct of its business
requires such qualification and where the failure to have such
power and authority or be so qualified or in good standing would
have singly or in the aggregate a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business (a “ Material Adverse Effect
”). Each significant subsidiary of the Company, as determined
with reference to (A) the book value of such
subsidiary’s assets (excluding goodwill and intercompany
receivables) and (B) the income from continuing operations
before income taxes, extraordinary items and cumulative effects of
changes in accounting principle of such subsidiary, each as
described in Rule 1-02 of Regulation S-X under the Exchange Act
(collectively, the “ Significant Subsidiaries
”), has been
4
duly organized, is validly existing
as a corporation or partnership in good standing under the laws of
its jurisdiction of organization and has the requisite power and
authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign corporation or
partnership authorized to do business in each jurisdiction where
the operation, ownership or leasing of property or the conduct of
its business requires such qualifications and where failure to have
such power and authority or to be so qualified or in good standing
would have a Material Adverse Effect;
(h) At June 30, 2009, on a
consolidated basis, after giving pro forma effect to the
issuance and sale of the Securities pursuant hereto and the Note
Repurchase, the Company would have an authorized and outstanding
capitalization as set forth in the Prospectus under the caption
“Capitalization” (other than for subsequent issuances
of capital stock, if any, pursuant to employee benefit plans
described in the Pricing Prospectus or upon exercise of outstanding
options described in the Pricing Prospectus). All of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and
conform to the description of the Common Stock contained in the
Pricing Disclosure Package and Prospectus, and the shares of Common
Stock initially issuable upon conversion of the Securities have
been duly and validly authorized and reserved for issuance and,
when issued and delivered in accordance with the provisions of the
Securities and the Certificate of Designation, will be duly and
validly issued, fully paid and non-assessable and will conform to
the description of the Common Stock contained in the Pricing
Disclosure Package and the Prospectus. All the outstanding shares
of capital stock or partnership interests of each Significant
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Pricing Prospectus, all outstanding shares of capital stock or
partnership interests of the Significant Subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances (each a “
Lien ”) that could have a Material Adverse
Effect;
(i) The unissued Securities to be
issued and sold by the Company to the Underwriters hereunder have
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform
to the description of the Securities contained in the Pricing
Disclosure Package and the Prospectus; the Company has authorized
and available a sufficient number of shares of Preferred Stock for
issuance of the Securities pursuant to this Agreement and has
authorized and available a sufficient number of shares of Common
Stock for issuance upon the exercise, conversion or exchange of all
outstanding options and other securities of the Company that are
convertible into or exchangeable for Common Stock, including the
Securities; the Certificate of Designation has been duly approved
and adopted by a resolution of the Board of Directors of the
Company, which resolution remains in full force and
5
effect, and will be filed with the
Secretary of State of the State of Nevada on or before the First
Time of Delivery; and the Certificate of Designation conforms in
all material respects to the description thereof contained in the
Pricing Disclosure Package and the Prospectus;
(j) Upon issuance and delivery of
the Securities in accordance with this Agreement, the Securities
will be convertible into shares of Common Stock in accordance with
the terms of the Securities set forth in the Certificate of
Designation; the shares of Common Stock reserved for issuance upon
conversion of the Securities have been duly authorized and reserved
and, when issued upon such conversion, will be validly issued,
fully paid and non-assessable, and the issuance of such Common
Stock will not be subject to any preemptive or similar
rights;
(k) This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its
terms, except as rights to indemnification hereunder may be limited
by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles;
(l) Neither the Company nor any of
its Significant Subsidiaries is in violation or default of
(i) any provision of their respective organizational
documents; (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject; or
(iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or its subsidiaries or any of its properties, as applicable, except
in the case of clauses (ii) and (iii) for such violations
or defaults as could not reasonable be expected to have, singly or
in the aggregate, a Material Adverse Effect. Other than as set
forth in the Pricing Prospectus, the Company’s execution,
delivery and performance of this Agreement, and the issuance and
delivery of the Securities, and consummation of the transactions
contemplated hereby and by the Prospectus (i) have been duly
authorized by all necessary corporate action and will not result in
any violation of the organizational documents of the Company or any
of its subsidiaries, (ii) will not conflict with or result in
a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or
to which their property is subject, except for such conflicts,
breaches, defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse
Effect and (iii) will not result in any violation of any
statute, law, rule,
6
regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or the property of the Company or its
subsidiaries. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the
Company’s execution, delivery and performance of this
Agreement, or the issuance and delivery of the Securities, or
consummation of the transactions contemplated hereby and by the
Prospectus, other than the filing of the Certificate of Designation
with the Secretary of State of the State of Nevada and any
necessary filings with the Commission on Form 8-K and except such
as have been obtained under the 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 Securities will conform in
all material respects to the respective statements relating thereto
contained in the Pricing Prospectus and Prospectus and will
constitute “Qualified Preferred Stock” (as defined in
the credit agreement, dated as of November 16, 2006, as
amended, supplemented, restated or otherwise modified from time to
time, among the Company, the lender and issuer parties thereto and
Citicorp USA, Inc., as administrative agent);
(n) The statements in the Pricing
Prospectus and Prospectus under the heading “Material United
States Federal Income Tax Considerations” fairly summarize
the matters therein described; the statements under the headings
“Description of Mandatory Convertible Preferred Stock”
and “Description of Capital Stock” fairly summarize the
material terms of the Securities and the Common Stock;
(o) Except as otherwise disclosed in
the Pricing Prospectus, no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
property of the Company or its subsidiaries is pending or, to the
best knowledge of the Company, threatened that could reasonably be
expected to have (i) a material adverse effect on the
performance by the Company of this Agreement or the Certificate of
Designation, the issuance and delivery of the Securities, or the
consummation of any of the transactions contemplated hereby or as
described in the Pricing Prospectus (exclusive of any amendment or
supplement thereto), or (ii) a Material Adverse Effect on the
Company, except as set forth in or contemplated in the Pricing
Prospectus (exclusive of any amendment or supplement
thereto);
(p) The Company and its subsidiaries
possess all licenses, certificates, permits, accreditations and
other authorizations (each, an “ Authorization
”) issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their
7
respective businesses, except where
the failure to possess such Authorization could not reasonably be
expected to have a Material Adverse Effect, and neither the Company
nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such
Authorization that, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, could reasonably be
expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Pricing Prospectus (exclusive of any
amendment or supplement thereto after the date of this
Agreement);
(q) The Company is not and, after
receipt of payment for the Securities and/or consummation of the
Note Repurchase will not be, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended (the “ Investment Company Act ”),
without taking account of any exemption arising out of the number
of holders of the Company’s securities;
(r) (A) (i) At the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest
time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(s) To the knowledge of the Company,
KPMG LLP (“ KPMG ”), who has certified certain
financial statements of the Company and its consolidated
subsidiaries and delivered its report with respect to certain of
the audited financial statements of the Company and related
schedules included in the Pricing Prospectus and the Prospectus,
are independent public accountants with respect to the Company
within the meaning of the Act. To the knowledge of the Company,
Deloitte & Touche LLP (“ Deloitte ”),
who has certified certain financial statements of the Company and
its consolidated subsidiaries and delivered its report with respect
to certain of the audited financial statements of the Company and
related schedules included in the Pricing Prospectus and the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act;
(t) The consolidated historical
financial statements and schedules of the Company and its
consolidated subsidiaries incorporated by reference in the Pricing
Prospectus and the Prospectus (together, the “ Financial
Statements ”) present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company as of the dates and for the
8
periods indicated and have been
prepared in conformity with generally accepted accounting
principles in the United States (“ U.S. GAAP ”)
applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The statistical and market
related data and forward looking statements included or
incorporated by reference in the Pricing Prospectus and the
Prospectus are based on or derived from sources that the Company
and its subsidiaries believe to be reliable and accurate in all
material respects and represent their good faith estimates that are
made on the basis of data derived from such sources;
(u) The Company and each of its
subsidiaries maintain 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 U.S. GAAP
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 and its subsidiaries are not aware of any
material weakness in their internal controls over financial
reporting;
(v) The Company and its subsidiaries
maintain “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange
Act);
(w) The Company is subject to, and
reporting in accordance with, Section 13 or Section 15(d)
of the Exchange Act;
(x) Each of the Company and its
subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the business in which it is
engaged;
(y) The Company has not taken,
directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(z) There is and has been no failure
on the part of the Company and 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
relating to loans and Sections 302 and 906 relating to
certifications;
(aa) The Company is, and immediately
after the Closing Date will be, Solvent. As used herein, the term
“ Solvent ” means, with respect to any person on
a particular date, that on such date (i) the fair market value
of the assets of such person is greater
9
than the total amount of liabilities
(including contingent liabilities) of such person, (ii) the present
fair salable value of the assets of such person is greater than the
amount that will be required to pay the probable liabilities of
such person on its debts as they become absolute and matured, (iii)
such person is able to realize upon its assets and pay its debts
and other liabilities, including contingent obligations, as they
mature and (iv) such person does not have unreasonably small
capital;
(bb) The Company and its Significant
Subsidiaries are (i) 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 and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) have not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals, or liability would not have a Material Adverse Effect on
the Company, except as set forth in the Pricing Prospectus
(exclusive of any amendment or supplement thereto);
(cc) No labor problem or dispute
with the employees of the Company or any of its subsidiaries exists
or, to the knowledge of the Company, is threatened or imminent,
that could reasonably be expected to have a Material Adverse Effect
on the Company, except as set forth in or contemplated in the
Pricing Prospectus (exclusive of any amendment or supplement
thereto); and
(dd) No wholly-owned subsidiary of
the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock or other
ownership interest, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring
any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, except as described in or
contemplated in the Pricing Prospectus (exclusive of any amendment
or supplement thereto) or where such prohibitions, singly or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $970, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Securities as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at
the
10
purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of
Optional Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum
number of Optional Securities which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum
number of Optional Securities that all of the Underwriters are
entitled to purchase hereunder.
The Company hereby grants to the
Underwriters the right to purchase at their election up to 45,000
Optional Securities, at the purchase price per share set forth in
the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Securities, provided
that the purchase price per Optional Share shall be reduced by an
amount per share equal to any dividends or distributions declared
by the Company and payable on the Firm Securities but not payable
on the Optional Securities. Any such election to purchase Optional
Securities may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of
the release of the Firm Securities, the several Underwriters
propose to offer the Firm Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Securities to be
purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as
Goldman, Sachs & Co. may request upon at least forty-eight
hours’ prior notice to the Company shall be delivered by or
on behalf of the Company to Goldman, Sachs & Co., through
the facilities of the Depository Trust Company (“ DTC
”), for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified
by the Company. The Company will cause the certificates
representing the Securities to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of DTC or its
designated custodian (the “ Designated Office
”). The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., New York City time, on
September 25, 2009 or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time,
on the date specified by Goldman, Sachs & Co. in the
written notice given by Goldman, Sachs & Co. of the
Underwriters’ election to purchase such Optional Shares, or
such other time and date as Goldman, Sachs & Co. and the
Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the “ First Time of
Delivery ”, such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein
called the “ Second Time of Delivery ”, and each
such time and date for delivery is herein called a “ Time
of Delivery ”.
11
(b) The documents to be delivered at
each Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for
the Securities and any additional documents requested by the
Underwriters pursuant to Section 8(p) hereof, will be
delivered at the offices of Latham & Watkins LLP, 355
South Grand Avenue, Los Angeles, California 90071 (the “
Closing Location ”), and the Securities will be
delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 4:00 p.m., New York
City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this
Section 4, “ New York Business Day ” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York City are
generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of
the Underwriters:
(a) To prepare the Prospectus in a
form approved by you and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or
the Prospectus prior to the last Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any amendment or supplement to the Prospectus
has been filed and to furnish you with copies thereof; to prepare 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
