6.0% Convertible Senior Notes due
2029
J.P. Morgan
Securities Inc.
277 Park Avenue
New York, New York 10172
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
UAL Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1
hereto (the “Underwriters”), for whom you are acting as
representatives (together, the “Representatives”), an
aggregate of $300,000,000 principal amount of its 6.0% Convertible
Senior Notes due 2029 (the “Underwritten Securities”)
and, at the option of the Underwriters, up to $45,000,000
additional principal amount of its 6.0% Convertible Senior Notes
due 2029 (the “Option Securities”) if and to the extent
that the Underwriters shall have determined to exercise the option
to purchase such 6.0% Convertible Senior Notes due 2029 granted to
the Underwriters in Section 2 hereof. The Underwritten
Securities and the Option Securities are herein referred to as the
“Securities”. The Securities will be convertible into
shares of common stock of the Company, par value $0.01 per share
(the “Common Stock”) (any shares of Common Stock issued
by the Company upon conversion being referred to as the
“Underlying Securities”). The Securities will be issued
pursuant to an indenture to be dated as of October 7, 2009
(the “Indenture”) between the Company and The Bank of
New York Mellon Trust Company, N.A., as trustee (the
“Trustee”).
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1.
Registration Statement . The Company has prepared and filed
with the Securities and Exchange Commission (the
“Commission”) under 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 on Form S-3 (File
No. 333-155794), including a prospectus (the “Basic
Prospectus”), relating to the Securities. Such registration
statement, as amended at the time of this Agreement, including the
information, if any, deemed pursuant to Rule 430A, 430B or
430C under the
Securities Act
to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”. As
used herein, the term “Preliminary Prospectus” means
any preliminary form of the Prospectus (as hereinafter defined)
filed with the Commission pursuant to Rule 424 under the
Securities Act, and the term “Prospectus” means the
prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Securities. 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. Any reference in
this Agreement 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, as of the effective date of the Registration Statement or the
date of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the
Applicable Time (as defined below), the Company had prepared the
following information (collectively, the “Time of Sale
Prospectus”): a Preliminary Prospectus dated
September 30, 2009 and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex A hereto.
“Applicable
Time” means 7:00 p.m., New York City time, on October 1,
2009.
2.
Purchase of the Securities by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Securities to the
several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Underwritten Securities
set forth opposite such Underwriter’s name in Schedule 1
hereto at a purchase price of 97.5% of the principal amount thereof
(the “Purchase Price”) plus accrued interest, if any,
from October 7, 2009 to the Closing Date (as defined
below).
In addition, the
Company agrees to issue and sell the Option Securities to the
several Underwriters as provided in this Agreement, and the
Underwriters, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not
jointly, from the Company the Option Securities at the Purchase
Price plus accrued interest, if any, from October 7, 2009 to
the date of payment and delivery.
If any Option
Securities are to be purchased, the principal amount of Option
Securities to be purchased by each Underwriter shall be the
principal amount of Option Securities which bears the same ratio to
the aggregate principal amount of Option Securities being purchased
as the principal amount of Underwritten Securities set forth
opposite the name of such Underwriter in Schedule 1 hereto (or
such principal amount increased as set forth in Section 10
hereof) bears to the aggregate principal amount of Underwritten
Securities being purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate
Securities in denominations other than $1,000 as the
Representatives in
2
their sole
discretion shall make.
The Underwriters
may exercise the option to purchase the Option Securities at any
time in whole, or from time to time in part, on or before the
thirtieth day following the date of this Agreement, by written
notice from the Representatives to the Company. Such notice shall
set forth the aggregate principal amount of Option Securities as to
which the option is being exercised and the date and time when the
Option Securities are to be delivered and paid for, which may be
the same date and time as the Closing Date (as hereinafter defined)
but shall not be earlier than the Closing Date or later than the
tenth full business day (as hereinafter defined) after the date of
such notice (unless such time and date are postponed in accordance
with the provisions of Section 10 hereof). Any such notice shall be
given at least two business days prior to the date and time of
delivery specified therein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell the Securities to or through any
affiliate of an Underwriter.
(c) Payment
for the Securities shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Securities, at the
offices of Milbank, Tweed, Hadley & McCloy LLP, One Chase
Manhattan Plaza, New York, New York 10005 at 10:00 A.M., New
York City time, on October 7, 2009, or at such other time or
place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may
agree upon in writing or, in the case of the Option Securities, on
the date and at the time and place specified by the Representatives
in the written notice of the Underwriters’ election to
purchase such Option Securities. The time and date of such payment
for the Underwritten Securities is referred to herein as the
“Closing Date”, and the time and date for such payment
for the Option Securities, if other than the Closing Date, is
herein referred to as the “Additional Closing
Date”.
Payment for the
Securities to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the nominee of The Depository Trust Company (“DTC”),
for the respective accounts of the several Underwriters of the
Securities to be purchased on such date of one or more global notes
representing the Securities, with any transfer taxes payable in
connection with the sale of such Securities duly paid by the
Company.
(d) 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 the offering of the
Securities 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, neither the Representatives nor any other
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 the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the 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.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter that:
3
(a)
Registration Statement, Time of Sale Prospectus and
Prospectus. The Company meets the requirements for use of Form
S-3 under the Securities Act; the Registration Statement has become
effective; and, on the original effective date of the Registration
Statement, the Registration Statement complied in all material
respects with the requirements of the Securities Act; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the Commission. The
Registration Statement is an “automatic shelf registration
statement” (as defined in Rule 405 under the Securities
Act), the Company is a “well-known seasoned issuer” (as
defined in Rule 405 under the Securities Act) and the Company
is eligible to use the Registration Statement as an automatic shelf
registration statement, and the Company has not received notice
that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The
Registration Statement does not, as of the date hereof, include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. As of its date and on the
Closing Date or the Additional Closing Date, as the case may be,
the Prospectus, as amended and supplemented, if applicable, does
not and will not include an untrue statement of a material fact and
does not and will not 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. The
Registration Statement, as of the date hereof, complies and the
Prospectus complies, and as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder.
The Time of Sale Prospectus did not, as of the Applicable Time, and
as then amended or supplemented, if applicable, will not as of the
Closing Date or the Additional Closing Date, as the case may be,
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Any information included in any “issuer free
writing prospectus” (as defined in Rule 433(h) under the
Securities Act) (each, an “Issuer Free Writing
Prospectus”) used in connection with the offering of the
Securities does not conflict with the information contained in the
Registration Statement, including any prospectus or prospectus
supplement that is part of the Registration Statement (including
pursuant to Rule 430B under the Securities Act) and not
superseded or modified. The preceding sentences do not apply to
statements in or omissions from the Registration Statement, the
Time of Sale Prospectus or the Prospectus in reliance upon and in
conformity with (A) any written information furnished to the
Company by any Underwriter expressly for use therein or
(B) statements or omissions in that part of each Registration
Statement which shall constitute the Statement of Eligibility of
the Trustee under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), on Form T-1.
(b) No
Material Adverse Change. Since the date of the most recent
audited financial statements of the Company incorporated by
reference in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except as otherwise stated or
incorporated by reference therein or contemplated thereby, there
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of
operations of the Company and its consolidated subsidiaries, taken
as a whole.
(c)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, at the time they were filed with the
Commission, complied or will comply, as the case may be, in all
material respects with the requirements of the Exchange
Act.
(d) Free
Writing Prospectus. The Company is not an “ineligible
issuer” pursuant to Rule 405 under the Securities Act.
Any free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Company has filed in connection with the offering of
4
the Securities,
or is required to file in connection with the offering of the
Securities, pursuant to Rule 433(d) under the Securities Act
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Annex A hereto, the
Company has not prepared, used or referred to, any free writing
prospectus in connection with the offering of the
Securities.
(e)
Organization and Good Standing. The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate
power and authority to own, lease and operate its property and to
conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or
otherwise), business, properties or results of operations of the
Company and its consolidated subsidiaries, taken as a whole (a
“United Material Adverse Effect”).
(f)
Subsidiaries. Each of the Company’s subsidiaries
listed on Schedule 2 hereto (together, the
“Subsidiaries”) has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a United Material Adverse Effect; all of the issued and
outstanding capital stock of each Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable;
and, except as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, each Subsidiary’s capital
stock is owned by the Company, directly or through subsidiaries,
and is owned free from liens, encumbrances and defects.
(g) No
Default or Conflict. The Company is not in default in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party
or by which it may be bound or to which any of its properties may
be subject, except for any such defaults that would not have a
United Material Adverse Effect. The execution, delivery and
performance of this Agreement, the Securities and the Indenture
(collectively, the “Transaction Documents”) and the
consummation by the Company of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate
action of the Company and will not result in (i) any breach of
any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to any indenture, loan agreement, contract, mortgage,
note, lease or other instrument to which the Company is a party or
by which the Company may be bound or to which any of the property
or assets of the Company is subject, (ii) any violation of the
provisions of the charter or by-laws of the Company or
(iii) any violation of any statute, any rule, regulation,
judgment, or order or decree of any government, governmental agency
or body or court, domestic or foreign, having jurisdiction over the
Company, except, in the case of clause (i) and (iii), for any
such breach, default, lien, charge, encumbrance or violation as
would not have a United Material Adverse Effect.
(h) No
Consents Required. No consent, approval, authorization, or
order of, or filing with, any governmental agency or body or any
court is required for the valid authorization, execution and
delivery by the Company of this Agreement and the other Transaction
Documents to which it is or will be a party and for the
consummation of the transactions contemplated herein and therein,
except such as may be required under the Securities Act, the Trust
Indenture Act, the securities or “blue sky” or similar
laws
5
of the various
states and of foreign jurisdictions or rules and regulations of the
Financial Industry Regulatory Authority, Inc.
(“FINRA”).
(i) Due
Authorization and Execution. This Agreement has been executed
and delivered by the Company.
(j) The
Indenture. The Indenture, when duly executed and delivered by
the Company, assuming that the Indenture has been duly authorized,
executed and delivered by, and constitutes the legal, valid and
binding obligations of, each other party thereto, will constitute
the valid and binding obligation of the Company, enforceable in
accordance with its terms, except (w) as enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally,
(x) as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), (y) that the enforceability
of the Indenture may also be limited by applicable laws which may
affect the remedies provided therein but which do not affect the
validity of the Indenture or make such remedies inadequate for the
practical realization of the benefits intended to be provided
thereby and (z) with respect to indemnification and
contribution provisions, as enforcement thereof may be limited by
applicable law. The Indenture, when executed, will be duly
qualified under the Trust Indenture Act.
(k) The
Securities. Each of the Securities to be issued under the
Indenture, when duly executed and delivered by the Company, duly
authenticated by the Trustee in accordance with the terms of the
Indenture, and paid for as provided in this Agreement, will be duly
issued under the Indenture and will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (x) as enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally,
(y) as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (z) that the
enforceability of the Indenture may also be limited by applicable
laws which may affect the remedies provided therein but which do
not affect the validity of the Indenture or make such remedies
inadequate for the practical realization of the benefits intended
to be provided thereby, and will be entitled to the benefits of the
Indenture.
(l) The
Underlying Securities. The Underlying Securities reserved for
issuance upon conversion of the Securities have been duly
authorized and reserved and, if and when issued upon conversion of
the Securities in accordance with the terms of the Securities, will
be validly issued, fully paid and non assessable and conform in all
material respects to the descriptions thereof contained in the Time
of Sale Prospectus; and the issuance of the Underlying Securities
will not be subject to any preemptive or similar rights.
(m)
Listing. The Common Stock is registered pursuant to Section
12(b) of the Exchange Act, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the Nasdaq Global Select Market
(the “Nasdaq Market”) nor has the Company received any
notification that the Commission or the Nasdaq Market is
contemplating terminating such registration or listing.
(n)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus (other than for subsequent issuances,
including restricted stock grants, if any, pursuant to employee
benefit plans described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus or upon the exercise of
outstanding options or warrants or vesting of restricted stock
units described in the Registration
6
Statement, the
Time of Sale Prospectus and the Prospectus or any issuance of
equity securities to directors under any current or future
directors’ plans); all the outstanding shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; none of the
outstanding securities of the Company were issued in violation of
the percentage limitations (without the benefit of any transfer in
trust provisions) contained in the Company’s organizational
documents, including, without limitation, the provisions of
Part VI, Section 2, Section 3 and Section 5 of
the Company’s restated certificate dated February 1,
2006, as amended; none of the outstanding shares of capital stock
of the Company have been issued in violation of any preemptive or
similar rights of any security holder or is subject to any
preemptive or similar rights; except as described in or expressly
contemplated by the Time of Sale Prospectus and the Prospectus,
there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock
or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(o)
Financial Statements. The consolidated financial statements
of the Company incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together
with the related notes thereto, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the consolidated results of
operations and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein and except that
unaudited financial statements do not have all required
footnotes.
(p) Title
to Real and Personal Property. Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and its Subsidiaries has good and
marketable title to all real and personal properties and assets
owned by them, in each case free from liens, encumbrances and
defects except where the failure to have such title would not have
a United Material Adverse Effect; and except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and its Subsidiaries holds any
leased real or personal property under valid and enforceable leases
with no exceptions that would reasonably be expected to have a
United Material Adverse Effect.
(q) Legal
Proceedings. Except as disclosed in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, there is no action,
suit or proceeding before or by any governmental agency or body or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against the Company, any of its Subsidiaries,
or any of their respective properties that individually (or in the
aggregate in the case of any class of related lawsuits), would
reasonably be expected to have a United Material Adverse Effect or
that would reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated by this
Agreement or the other Transaction Documents.
(r) No
Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that would reasonably be expected to have a
United Material Adverse Effect.
(s)
Licenses and Permits. Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and the Subsidiaries has all
licenses, permits,
7
orders,
consents, authorizations, approvals and certificates of and from,
and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, except to the extent
that the failure to so obtain, declare or file would not have a
United Material Adverse Effect.
(t)
Compliance with Environmental Laws. Except as disclosed in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, neither the Company nor any of its Subsidiaries is in
violation of any statute, rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances (collectively, “environmental laws”), owns
or operates any real property contaminated with any substance that
imposes any liability under any environmental laws, or is subject
to any claim relating to any environmental laws, which violation,
contamination, liability or claim individually or in the aggregate
is reasonably expected to have a United Material Adverse Effect.
The Company is not aware of any pending investigation that would
reasonably be expected to lead to such a claim that would have a
United Material Adverse Effect.
(u)
Independent Accountants. The accountants that examined and
issued an auditors’ report with respect to the consolidated
financial statements of the Company, and the financial statement
schedules of the Company, if any, included or incorporated by
reference in the Registration Statement, are independent public
accountants within the meaning of the Securities Act with respect
to the Company.
(v)
Investment Company Act. The Company is not an
“investment company”, or an entity
“controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended (the “Investment Company Act”), in each case
required to register under the Investment Company Act; and after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus,
the Company will not be an “investment company”, or an
entity “controlled” by an “investment
company”, as defined in the Investment Company Act, in each
case required to register under the Investment Company
Act.
(w)
Description of the Transaction Documents. This Agreement and
the other Transaction Documents to which the Company is or will be
a party will, upon execution and delivery thereof, conform in all
material respects to the descriptions thereof contained in the Time
of Sale Prospectus.
(x)
Disclosure Controls. The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that complies with the requirements of the Exchange
Act and that has been designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(y)
Accounting Control. Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, the
Company (A) makes and keeps books, records and accounts,
which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the material assets of the Company
and its consolidated subsidiaries and (B) maintains a system
of internal accounting controls sufficient to provide reasonable
assurances that (1) transactions are executed in accordance
with management’s general or specific authorization;
(2) transactions are recorded as necessary: (x) to
permit
8
preparation of
financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such
statements and (y) to maintain accountability for assets;
(3) access to material assets is permitted only in accordance
with management’s general or specific authorization; and
(4) the recorded accountability for material assets is
compared with the existing material assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(z) No
Stabilization or Manipulation. Neither the Company nor any of
its directors, officers or controlling persons has taken, directly
or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the
Securities or which otherwise is in contravention of applicable
law.
(aa) No
Broker. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim
against the Company or any of its subsidiaries for a brokerage
commission, finder’s fee or like payment in connection with
the offering and sale of the Securities.
The
parties agree that any certificate signed by a duly authorized
officer of the Company and delivered to an Underwriter, or to
counsel for the Underwriters, on the Closing Date or the Additional
Closing Date, as the case may be, and in connection with this
Agreement or the offering of the Securities, shall be deemed a
representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
4.
Further Agreements of the Company . The Company covenants
and agrees with each Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act; will file
any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and
any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 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 is
required in connection with the offering or sale of the Securities;
and will furnish copies of the Prospectus and each Issuer Free
Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably
request. The Company will pay the registration fee for this
offering within the time period required by Rule 456(b)(1)
under the Securities Act and in any event prior to the Closing
Date.
(b) Delivery of
Copies. The Company will deliver, without charge, during the
Prospectus Delivery Period (as defined below), as many copies of
the Prospectus (including all amendments and supplements thereto)
and each Issuer Free Writing Prospectus as the Representatives may
reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first
date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or
dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before
preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the
Prospectus,
9
whether before
or after the time that the Registration Statement becomes
effective, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably
object.
(d) Notice to
the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing,
(i) when the Registration Statement has become effective;
(ii) when any amendment to the Registration Statement has been
filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment
to the Prospectus has been filed; (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement
or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, any
of the Time of Sale Prospectus or the Prospectus or the initiation
or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (vi) of the occurrence
of any event within the Prospectus Delivery Period as a result of
which the Prospectus, the Time of Sale Prospectus or any Issuer
Free Writing Prospectus as then amended or supplemented would
include 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 existing when the Prospectus, the
Time of Sale Prospectus or any such Issuer Free Writing Prospectus
is delivered to a purchaser, not misleading; and (vii) of the
receipt by the Company 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
Securities Act; and (viii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
the Company will use its commercially reasonable efforts to prevent
the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Time of Sale Prospectus or the
Prospectus or suspending any such qualification of the Securities
and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period
(i) any event shall occur or condition shall exist as a result
of which the Prospectus 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 existing when the
Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus 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 and furnish to the
Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law and
(2) 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 Prospectus 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 existing when the Time
of Sale Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Time of Sale
Prospectus to comply
10
with law, the
Company will immediately 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
Prospectus as may be necessary so that the statements in the Time
of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Time of Sale
Prospectus is delivered to a purchaser, be misleading or so that
the Time of Sale Prospectus will comply with law.
(f) Blue Sky
Compliance. The Company will qualify the Securities for offer
and sale under the securities or “blue sky” laws of
such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required
for distribution of the Securities; provided that the Company shall
not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any such jurisdiction
if it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Representatives as soon as reasonably
practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the
Company occurring after the “effective date” (as
defined in Rule 158) of the Registration Statement.
(h) Clear
Market. For a period (the “Lock-Up Period”) of
60 days after the date of the Prospectus, the Company will not
(i) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or
indirectly, or file with the Commission a registration statement
under the Securities Act relating to, the Securities, any shares of
the Common Stock or any securities convertible into or exercisable
or exchangeable for the Securities or the Common Stock
(collectively, the “Lock-Up Securities”), or publicly
disclose the intention to make any offer, sale, pledge, disposition
or filing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Lock-Up Securities, whether any such transaction
described in clause (i) or (ii) above is to be settled by
delivery of Lock-Up Securities, in cash or otherwise, without the
prior written consent of J.P. Morgan Securities Inc., other than
(A) the Securities to be sold hereunder, (B) the shares
of Common Stock to be sold by the Company concurrently herewith
pursuant to an underwriting agreement, dated the date hereof,
between the Company and J.P. Morgan Securities Inc., Morgan Stanley
& Co. Incorporated and Goldman, Sachs & Co., as
representatives of the several underwriters named therein,
(C) the grant of options, awards of restricted stock and
restricted stock units or the issuances of Lock-Up Securities and
similar grants and awards
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