Exhibit 1.1
14,925,373 Shares
Saks
Incorporated
Common Stock, Par Value $0.10
Per share
Underwriting
Agreement
September 30,
2009
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
Morgan Stanley
& Co. Incorporated
1585
Broadway
New York, New
York 10036
As
Representatives of the several Underwriters named in Schedule I
hereto (the “Representatives”)
Ladies and
Gentlemen:
Saks
Incorporated, a Tennessee 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 14,925,373 shares
(the “Firm Shares”) and, at the election of the
Underwriters, up to 2,238,805 additional shares (the
“Optional Shares”) of common stock, par value $0.10 per
share (“Stock”) of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof being collectively called the
“Shares”).
1.
The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A
registration statement on Form S-3 (File No. 333-160914) (the
“Initial Registration Statement”) in respect of the
Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement
has been declared effective by the Commission in the form as filed;
no document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been
filed, or transmitted for filing, with the Commission (other than
the Company’s Current Reports on Form 8-K filed with the
Commission on
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August 6, 2009,
August 18, 2009 and September 3, 2009, the Company’s
Quarterly Report on Form 10-Q for the period ended August 1, 2009
and prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act); and no stop order
suspending the effectiveness of the Initial Registration Statement
has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (the base prospectus
filed as part of the Initial 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 relating to the Shares, is
hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares heretofore filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of
the Initial Registration Statement, including all exhibits thereto
and including any prospectus supplement relating to the Shares that
is filed with the Commission and deemed by virtue of Rule 430B
under the Act to be part of the Initial Registration Statement,
each as amended at the time such part of the Initial Registration
Statement became effective is 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 Shares filed with 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, as of the date of such prospectus
(but excluding those filed after the termination of the offering of
the Shares by the Representatives); 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 Shares 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 and
prior to the termination of the offering of the Shares by the
Representatives; 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
and prior to the termination of the offering of the Shares by the
Representatives 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 Shares 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
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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 representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(c) For the
purposes of this Agreement, the “Applicable Time” is
5:30 p.m. (Eastern time) on the date of this Agreement. The Pricing
Prospectus, 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 Prospectus 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 the Representatives expressly for
use therein;
(d) The
documents incorporated by reference in the Pricing Prospectus and
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day
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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;
(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 the
Representatives expressly for use therein;
(f)
Neither the Company nor any of its “significant
subsidiaries” (as such term is defined in Rule 1-02 of
Regulation S-X) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, other than as set forth or contemplated in
the Pricing Prospectus or as would not reasonably be expected to
have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its
significant subsidiaries, taken as whole (a “Material Adverse
Effect”); and, since the respective dates as of which
information is given in the Registration Statement and the Pricing
Prospectus, there has not been any material change in the capital
stock or long term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
business financial position or results of operations of the Company
and its subsidiaries, taken as a whole, other than as set forth or
contemplated in the Pricing Prospectus;
(g) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and, except as described in the Pricing Prospectus or as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, any real property, equipment and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases,
subject to the effect of (1) bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or
other similar laws relating to or affecting the rights of creditors
generally, (2) the application of general principles of equity
(including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing,
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regardless of
whether enforcement is considered in proceedings at law or in
equity), and (3) applicable law and public policy with respect to
rights to indemnity and contribution;
(h) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Tennessee. Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, the
Company has power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction. To the extent not included within the prior
sentences, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, each
subsidiary of the Company (1) has been duly incorporated (or
formed) and is validly existing as a corporation (or other legal
entity) in good standing under the laws of its jurisdiction of
formation, and (2) has been duly qualified as a foreign corporation
(or other legal entity) for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification;
(i) The
Company has an authorized capitalization as set forth in the
Pricing Prospectus and all of the outstanding shares of 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 Stock contained in the Pricing Prospectus and
Prospectus;
(j) Prior to
the date hereof, neither the Company nor any of its affiliates who
are “affiliated purchasers” as defined under Rule 100
of Regulation M has taken any action which is designed to or which
has constituted or which could reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the
Shares;
(k) The issue
and sale of the Shares and the compliance by the Company with this
Agreement and the consummation of the transactions herein
contemplated (i) will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) will not
result in any violation of the provisions of the Charter or By-laws
of the Company, and (iii) will not result in any material violation
of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except in the
case of clause (i) above, as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and no consent, approval, authorization, order,
registration or
5
qualification
of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation
by the Company of the transactions contemplated by this Agreement
except such as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the listing of the Shares on the New York Stock
Exchange (the “Exchange”);
(l) Neither
the Company nor any of its significant subsidiaries is in violation
of its Charter or By-laws (or applicable organization documents) or
in default in the performance or observance of any material
obligation, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(m) The
statements set forth in the Pricing Prospectus and the Prospectus
under the captions (i) “Description of Capital Stock”,
insofar as they purport to summarize the terms of the Stock; and
(ii) “Certain U.S. Federal Income Tax Considerations for
Non-U.S. Holders” insofar as they purport to summarize
matters of U.S. federal income tax law and regulations or legal
conclusions with respect thereto, fairly summarize the matters
described therein in all material respects (based on the
assumptions described therein);
(n) Other
than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject, which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) 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 Pricing Prospectus, will not be an “investment
company”, as such term is defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”);
(p) At the
earliest time after the filing of the Initial 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 Shares, the Company was not an “ineligible
issuer” as defined in Rule 405 under the Act;
(q)
Except as disclosed in the Pricing Prospectus, the Company and its
subsidiaries own, or have valid, binding and enforceable licenses
or other rights to use, free and clear of all liens, charges,
claims, encumbrances, pledges, security interests, defects and
other like restrictions, all Intellectual Property (as defined
below) necessary to conduct the business of the Company and its
subsidiaries in the manner
6
presently
conducted, without any conflict with the rights of others, except
as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; “Intellectual
Property” means all patents, patent applications, trademarks,
trademark applications, trade names, service marks, service names,
copyrights, trade secrets, know how (including all unpatented or
unpatentable proprietary or confidential information, systems or
procedures), technology, inventions, designs, processes, methods,
technical data and information or other intangible asset, other
proprietary intellectual property right or any license or other
right to use any of the foregoing;
(r)
The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed or caused to be designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The
Company’s internal control over financial reporting as of
January 31, 2009, the last date as of which such control was
evaluated, was effective and the Company is not aware of any
material weaknesses in its internal control over financial
reporting;
(s)
Since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, there has
been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting;
(t)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure
controls and procedures have been designed for the purposes set
forth in Rule 13a-15(e); and the Company has carried out
evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act;
(u)
There is and has been no material 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;
(v)
PricewaterhouseCoopers LLP, which has audited certain financial
statements of the Company and its subsidiaries, and has audited the
Company’s internal control over financial reporting, is an
independent public accountant as required by the Act and the rules
and regulations of the Commission thereunder;
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(w)
Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data
included in the Pricing Prospectus, if any, is not based on or
derived from sources that are reliable and accurate in all material
respects;
(x)
Neither the Company nor any of its subsidiaries, nor to the
Company’s knowledge, any of their respective affiliates,
directors, officers, or employees, agents or representatives, has
taken or will take any action in furtherance of an offer, payment,
promise to pay, or authorization or approval of the payment or
giving of money, property, gifts or anything else of value,
directly or indirectly, to any “government official”
(including any officer or employee of a government or
government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or
on behalf of any of the foregoing, or any political party or party
official or candidate for political office) to influence official
action or secure an improper advantage; and the Company, its
subsidiaries and their respective affiliates have conducted their
businesses in material compliance with applicable anti-corruption
laws and have instituted and maintain and will continue to maintain
policies and procedures designed to promote and achieve compliance
with such laws and with the representation and warranty contained
herein;
(y)
The operations of the Company and its subsidiaries are and have
been conducted at all times in material compliance with all
applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the
“USA PATRIOT Act”), and the applicable anti-money
laundering statutes of jurisdictions where the Company and its
subsidiaries conduct business, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “Anti-Money Laundering Laws”), and
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 with respect to the
Anti-Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened; and
(z)
(i) Neither the Company nor its subsidiaries (collectively,
the “Entity”) or, to the Company’s knowledge, any
director, officer, employee, agent, affiliate or representative of
the Entity, is an individual or entity (“Person”) that
is, or is owned or controlled by a Person that is:
(A)
the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the United Nations Security Council
(“UNSC”), the European Union (“EU”),
Her
8
Majesty’s
Treasury (“HMT”), or other relevant sanctions authority
(collectively, “Sanctions”), nor
(B)
located, organized or resident in a country or territory that is
the subject of Sanctions (including, without limitation,
Burma/Myanmar, Cuba, Iran, North Korea, Sudan and
Syria).
(ii)
The Entity represents and covenants that it will not, directly or
indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:
(A)
to fund or facilitate any activities or business of or with any
Person or in any country or territory that, at the time of such
funding or facilitation, is the subject of Sanctions; or
(B)
in any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii)
The Entity represents and covenants that it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
2.
Subject to the terms and conditions herein set forth, the Company
agrees: (a) 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 $6.3818, the
number of Firm Shares 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 Shares as provided below, 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
purchase price per share set forth in clause (a) of this Section 2,
that portion of the number of Optional Shares 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 Shares by a fraction, the numerator of which is the
maximum number of Optional Shares 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 Shares 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 2,238,805 Optional Shares, at the
purchase price per share set forth in Section 2(a)
9
above, for the
sole purpose of covering sales of shares in excess of the number of
Firm Shares, 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
Shares after the date hereof but not payable on the Optional
Shares. Any such election to purchase Optional Shares 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 Shares to
be purchased and the date on which such Optional Shares 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 Shares, the
several Underwriters propose to offer the Shares for sale upon the
terms and conditions set forth in the Prospectus.
4.
(a) The
Shares to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight
hours’ prior notice to the Company shall be delivered by or
on behalf of the Company to the Representatives, 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 to
the Representatives at least forty-eight hours in advance. If the
Shares are certificated, the Company will cause the certificates
representing the Shares 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 October 6,
2009 or such other time and date as the Representatives 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
the Representatives in the written notice given by the
Representatives of the Underwriters’ election to purchase
such Optional Shares, or such other time and date as the
Representatives 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”.
(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 Shares and any additional
documents requested by the Representatives pursuant to Section 8(n)
hereof, will be delivered at the offices of Davis Polk &
Wardwell LLP, 450 Lexington Avenue, New York, New York (the
“Closing Location”), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting
will be held at the Closing Location at 2:00 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
10
preceding
sentence will be available for review by the parties hereto. For
the purposes of this Agreement, “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 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 reasonably acceptable to 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 date of this Agreement or such earlier
time as may be required under the Act; 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 reasonably objected to in writing 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; to file
promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act within the time
required by such Rule; to file or furnish promptly all reports and
any definitive proxy or information statements required to be filed
or furnished by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering
or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Shares, of the
suspension of the qualification of the Shares for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus or suspending any such qualification, to promptly
use its reasonable best efforts to obtain the withdrawal of such
order;
(b) Promptly
from time to time to reasonably cooperate with you to qualify the
Shares for offering and sale under the securities laws of such
jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection
therewith the Company shall not be required (i) to qualify as a
foreign corporation or other entity or as a dealer in securities in
any jurisdiction where it would not otherwise be required to
qualify, (ii) file a general consent to service of process in any
jurisdiction, (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject or (iv) make any
change to its Charter or By-laws or similar organizational
documents;
11
(c) [Reserved]
(d) Promptly
after the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may from time
to time reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required at any time prior to the expiration of six
months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify you and upon
your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance; and in case any Underwriter is required to deliver
a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(e) To make
generally available to its security holders as soon as practicable,
but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(f) During
the period beginning from the date hereof and continuing until the
date 90 days after the date of the Prospectus, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose, except as provided hereunder, of
any securities of the Company that are substantially similar to the
Shares, including but not limited to any options or warrants to
purchase shares of Stock or any securities that are convertible
into or exchangeable for, or that represent the right to receive,
Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of the Representatives;
12
(g)
[Reserved]
(h)
[Reserved]
(i)
To use the net proceeds received by it from the sale of the Shares
in the manner specified in the Pricing Prospectus under the caption
“Use of Proceeds”; and (j) To use its commercially
reasonable efforts to list, subject to notice of issuance, the
Shares on the Exchange.
6.
(a) The
Company represents and agrees that, without the prior consent of
the Representatives, it has not made and will not make any offer
relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; each
Underwriter represents and agrees that, without the prior consent
of the Company and the Representatives, it has not made and will
not make any offer relating to the Shares that would constitute a
free writing prospectus. Schedule II(a) hereto lists: any such free
writing prospectus the use of which has been consented to by either
the Company or the Representatives prior to the date of this
Agreement;
(b) The
Company has complied and will comply with the requirements of Rule
433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention, when
required, and legending; and
(c) The
Company agrees that if at any time following issuance of an Issuer
Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus
or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus
made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7.
The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation,
printing, reproduction and filing of the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the materials contained in the Pricing
Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing
any Agreement Amo
