CENTERPOINT ENERGY, INC.
21,000,000 Shares
Common Stock, Par Value $0.01 Per Share
Underwriting Agreement
Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Deutsche Bank
Securities Inc.
60 Wall Street
New York, New York 10005
Merrill Lynch,
Pierce, Fenner & Smith Incorporated
One Bryant Park
New York, New York 10036
UBS Securities
LLC
677 Washington Boulevard
Stamford, Connecticut 06901
as the
Representatives of the several Underwriters
CenterPoint
Energy, Inc., a Texas corporation (the “ Company
”), confirms, subject to the terms and conditions stated
herein, its agreement to issue and sell to the Underwriters named
in Schedule I hereto (the “ Underwriters ”)
21,000,000 shares (the “ Firm Shares ”) of
common stock, par value $0.01 per share (the “ Common
Stock ”), and the preferred share purchase rights
appurtenant thereto (the “ Rights ”), of the
Company and, at the election of the Representatives acting on
behalf of the Underwriters, to issue and sell to the Underwriters,
solely to cover over-allotments, up to an additional 3,150,000
shares of Common Stock and appurtenant Rights (the “
Optional Shares ,” and, together with the Firm Shares,
the “ Securities ”). The Company understands
that the several Underwriters propose to offer the Securities for
sale upon the terms and conditions contemplated by this Agreement
and reflected in the documents and information in Schedule II
(such material herein called the “ Pricing Disclosure
Package ”).
1.
Representations and Warranties of the Company.
(a) The
Company represents and warrants to, and agrees with, each of the
Underwriters, on and as of the date hereof and the Closing Date (as
defined in Section 2) that:
(i) A
joint registration statement on Form S-3 with respect to the
Securities and other securities (File Nos. 333-153916 and
333-153916-01), copies of which have been delivered to the
Underwriters, has been prepared and filed by the Company, together
with CenterPoint Energy Houston Electric, LLC, an indirect
wholly-owned subsidiary of the Company, with the Securities and
Exchange Commission (the “ Commission ”). Such
registration statement, including a prospectus, has become
effective under the Securities Act of 1933, as amended (the “
1933 Act ”), and no stop order suspending its
effectiveness has been issued and no proceeding for that purpose or
pursuant to Section 8A of the 1933 Act against the Company or
related to the offering has been initiated or, to the best
knowledge of the Company, threatened by the Commission. The term
“ Registration Statement ” means such
registration statement, as deemed revised pursuant to
Rule 430B(f)(1) under the 1933 Act on the date of such
registration statement’s effectiveness for purposes of
Section 11 of the 1933 Act, as such section applies to the
Company and the Underwriters for the Securities pursuant to
Rule 430B(f)(2) under the 1933 Act (the “ Effective
Date ”). The base prospectus included in the Registration
Statement relating to the Securities and certain other issues of
debt and equity securities (exclusive of any supplement filed
pursuant to Rule 424) is herein called the “ Basic
Prospectus .” The Basic Prospectus as amended and
supplemented by a preliminary prospectus supplement dated
September 9, 2009 relating to the Securities immediately prior
to the Applicable Time (as defined below) is hereinafter called the
“ Preliminary Prospectus .” The Company proposes
to file together with the Basic Prospectus and pursuant to
Rule 424 under the 1933 Act a prospectus supplement
specifically relating to the Securities and reflecting the terms of
the Securities and plan of distribution arising from this Agreement
(herein called the “ Pricing Supplement ”) and
has previously advised the Underwriters of all the information to
be set forth therein. The term “ Prospectus ”
means the Basic Prospectus together with the Pricing Supplement, as
first filed with the Commission pursuant to
Rule 424.
Any
reference herein to the Basic Prospectus, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, or deemed
to be incorporated by reference therein, and filed under the
Securities Exchange Act of 1934, as amended (the “ 1934
Act ”), on or before the date of such Basic Prospectus,
Preliminary Prospectus or Prospectus, as applicable; any reference
herein to the terms “amend,” “amendment” or
“supplement” with respect to the Basic Prospectus, the
Preliminary Prospectus or Prospectus shall be deemed to refer to
and include, without limitation, the filing of any document under
the 1934 Act deemed to be incorporated therein by reference after
the date of such Basic Prospectus, Preliminary Prospectus or
Prospectus.
For
purposes of this Agreement, the “ Applicable Time
” is 4:45 p.m. (New York Time) on the date of this
Agreement;
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(ii) The
Registration Statement, each Permitted Free Writing Prospectus (as
defined in Section 3(a)), the Preliminary Prospectus and the
Prospectus conform, and any amendments or supplements thereto will
conform, in all material respects to the requirements of the 1933
Act and the rules and regulations of the Commission thereunder; and
(A) the Registration Statement will not, as of the Effective
Date, 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, and (B) (i) the
Pricing Disclosure Package does not as of the Applicable Time,
(ii) each Permitted Free Writing Prospectus or other Issuer
Free Writing Prospectus (such term having the meaning assigned to
it by Rule 433 of the 1933 Act), when considered with the
Pricing Disclosure Package, does not as of the Applicable Time,
(iii) the Prospectus and any amendment or supplement thereto
will not, as of their dates, and (iv) the Prospectus, as it
may be amended or supplemented pursuant to Section 4 hereof,
as of the Closing Date 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, in the
light of the circumstances under which they were made, not
misleading; provided , however , that this
representation and warranty shall not apply to: (A) any
statements or omissions made in reliance upon and in conformity
with any information furnished in writing by, or through the
Representatives on behalf of, any Underwriter for use therein, and
(B) any Form T-1 Statement of Eligibility and Qualification
included as an exhibit to the Registration Statement;
(iii) Each
document filed or to be filed pursuant to the 1934 Act and
incorporated by reference, or deemed to be incorporated by
reference in the Preliminary Prospectus or the Prospectus
(including, without limitation, any document to be filed pursuant
to the 1934 Act which will be incorporated by reference in the
Prospectus) conformed or, when so filed, will conform in all
material respects to the requirements of the 1934 Act and the
applicable rules and regulations of the Commission thereunder, and
none of such documents included or, when so filed, will include any
untrue statement of a material fact or omitted or, when so filed,
will omit to state any 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;
(iv) Any
Permitted Free Writing Prospectus or other Issuer Free Writing
Prospectus does not include anything that conflicts with the
information contained or incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the
Prospectus;
(v) (A) At
the time of filing of the Registration Statement, (B) at the
time of the most recent amendment to the Registration Statement for
the purposes of complying with Section 10(a)(3) of the 1933
Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus) and (C) 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 1933 Act) made any offer
relating to the Securities in reliance on the exemption of
Rule 163 under the 1933 Act, the Company was a
“well-known seasoned issuer” (as defined in Rule 405
under the 1933 Act);
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(vi) With
respect to the Registration Statement, (A) the Registration
Statement is an “automatic shelf registration
statement” (as defined in Rule 405 under the 1933 Act),
(B) the Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to
the use of the automatic shelf registration statement and
(C) the conditions for use of Form S-3 have been, and continue
to be, satisfied by the Company;
(vii) At
the determination date for purposes of the Securities within the
meaning of Rule 164(h) under the 1933 Act, the Company was not an
“ineligible issuer” as defined in Rule 405 under
the 1933 Act;
(viii) The
Company has been duly incorporated and is validly existing in good
standing under the laws of the State of Texas, with corporate power
and authority to own its properties and conduct its business as
described in the Pricing Disclosure Package and the
Prospectus;
(ix) Each
Significant Subsidiary (as defined in Regulation S-X under the
1933 Act) of the Company has been duly formed and is validly
existing in good standing under the laws of the jurisdiction of its
formation, with power and authority (corporate or other) to own its
properties and conduct its business as described in the Pricing
Disclosure Package and the Prospectus; and each Significant
Subsidiary of the Company is duly qualified to do business as a
foreign corporation, limited partnership or limited liability
company in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification; all of the issued and outstanding
ownership interests of each Significant Subsidiary of the Company
have been duly authorized and validly issued in accordance with the
organizational documents of such Significant Subsidiary; and the
ownership interests of each Significant Subsidiary owned by the
Company, directly or through subsidiaries, are owned free from
liens, encumbrances and defects;
(x) This
Agreement has been duly authorized, executed and delivered by the
Company;
(xi) The
Company’s authorized equity capitalization is as set forth in
the Pricing Disclosure Package and the Prospectus; the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Pricing Disclosure Package and
the Prospectus; the outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and
nonassessable; the Securities have been duly authorized by the
Company and, when issued and delivered against payment therefor
pursuant to this Agreement, the Securities will be duly and validly
issued, fully paid and nonassessable; the issuance of the
Securities will not be subject to any preemptive or other rights
under the Restated Articles of Incorporation or the Amended and
Restated Bylaws of the Company, each as amended to date, or the
Texas Business Corporation Act to subscribe for shares of Common
Stock; and, except (i) as set forth in the Pricing Disclosure
Package and the Prospectus and (ii) for options, restricted
stock and performance shares granted pursuant to the CenterPoint
Energy, Inc. Long-Term Incentive Plan and the CenterPoint Energy,
Inc. Stock Plan for Outside
4
Directors, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company, which were granted by the
Company, are outstanding; and the Securities will conform in all
material respects to the descriptions thereof in the Pricing
Disclosure Package and the Prospectus;
(xii) The
Rights Agreement, dated as of January 1, 2002, between the
Company and JPMorgan Chase Bank, as rights agent (the “
Rights Agreement ”), has been duly authorized,
executed and delivered by the Company; the Rights have been duly
authorized by the Company and, when issued upon issuance of the
Securities, will be validly issued;
(xiii) The
issuance by the Company of the Securities, the compliance by the
Company with all of the applicable provisions of this Agreement,
and the consummation by the Company of the transactions
contemplated herein (a) will not conflict with or 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 subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the property or assets of
the Company or any subsidiary is subject, which conflict, breach,
violation, or default would individually, or in the aggregate, have
a material adverse effect on the financial condition, business,
prospects or results of operations of the Company and its
subsidiaries, taken as a whole (“ Material Adverse
Effect ”); and (b) will not result in any violation
of the provisions of the Restated Articles of Incorporation or
Amended and Restated By-laws or other organizational documents of
the Company, the charter, by-laws or other organizational documents
of any subsidiary of the Company or any existing statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company’s or any of its or
its subsidiaries’ properties;
(xiv) No
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issuance of the Securities or the
consummation by the Company of the other transactions contemplated
by this Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the issuance by the
Company of the Securities and the purchase and distribution of the
Securities by the Underwriters;
(xv) The
Company and its subsidiaries possess certificates, authorities or
permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect;
(xvi) Except
as disclosed in the Pricing Disclosure Package and the Prospectus,
neither the Company nor any of its subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any
governmental agency or body or any
5
court, domestic
or foreign, relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “ Environmental Laws ”), owns or
operates any real property contaminated with any substance that is
subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is
subject to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which has a reasonable
possibility of leading to such a claim;
(xvii) Except
as disclosed in the Pricing Disclosure Package and the Prospectus,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under
this Agreement, or which are otherwise material in the context of
the sale of the Securities; and no such actions, suits or
proceedings are threatened or, to the Company’s knowledge,
contemplated;
(xviii) The
financial statements included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, such financial
statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis;
(xix) Since
the date of the latest audited financial statements incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, there has been no material adverse change in the
business, financial condition, prospects or results of operations
of the Company and its subsidiaries taken as a whole, and there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its equity interests (other than
regular quarterly dividends on the Common Stock);
(xx) The
Company maintains a system of internal accounting controls and
maintains disclosure controls and procedures in conformity with the
requirements of the 1934 Act and is otherwise in compliance in all
material respects with the requirements of the Sarbanes-Oxley Act
of 2002 and the rules and regulations promulgated in connection
therewith;
(xxi) Deloitte
& Touche LLP, who have certified certain financial statements
of the Company and its subsidiaries, are an independent registered
public accounting firm with respect to the Company and its
subsidiaries within the
6
applicable
rules and regulations adopted by the Commission and the Public
Company Accounting Oversight Board (United States) and as required
by the 1933 Act;
(xxii) The
Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Prospectus under the caption “Use of
Proceeds,” will not be an “investment company” as
such term is defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(xxiii) The
Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary for similarly
situated companies in the businesses in which they are
engaged;
(xxiv) The
operations of the Company and its subsidiaries are and, since
January 1, 2006, have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ 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 Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened; and
(xxv) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“ OFAC ”); and the
Company 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
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(a) Subject
to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, the number of Firm Shares set forth in Schedule I
opposite the name of such Underwriter (plus an additional amount of
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 8 hereof) at a purchase
price of $11.58 per share.
(b) In
addition, subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, the Option Shares at the same
purchase price as the Underwriters paid for the Firm Shares. The
option may be exercised in whole or in part, and, if exercised, the
Option Shares must be purchased by the Underwriters and resold to
persons not acting in
7
the capacity of
underwriters, placement agents or wholesalers, on or before the
30 th
day after the date on which the Firm
Shares were purchased by one or more persons not acting in the
capacity of Underwriters, placement agents or wholesalers. The
option may be exercised in whole or in part from time to time upon
written or telegraphic notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several
Underwriters are exercising the option and the settlement date.
Delivery of the Option Shares, and payment therefor, shall be made
as provided in this Section 2. The number of Option Shares to
be purchased by each Underwriter shall be the same percentage of
the total number of Option Shares to be purchased by the several
Underwriters as such Underwriter is purchasing of the Firm Shares,
subject to such adjustments as the Representatives in their
absolute discretion shall make to eliminate any fractional
shares.
(c) The
Securities to be purchased by each Underwriter hereunder will be
represented by one or more registered global securities in
book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“ DTC
”) or its designated custodian, unless the Representatives
shall otherwise instruct. The Company will deliver the Securities
to Citigroup Global Markets Inc., acting on behalf of the
Underwriters for the account of each Underwriter, against payment
by or on behalf of such Underwriter of the amount therefor, as set
forth above, by wire transfer of Federal (same day) funds to a
commercial bank account located in the United States and designated
in writing at least forty-eight hours prior to the Closing Date by
the Company to Citigroup Global Markets Inc., by causing DTC to
credit the Securities to the account of Citigroup Global Markets
Inc., at DTC. The Company will cause the global certificates
representing the Securities to be made available to Citigroup
Global Markets Inc., Deutsche Bank Securities Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and UBS Securities LLC, as
joint-book running managing underwriters (together, the “
Representatives ”), acting on behalf of the
Underwriters, for checking at least twenty-four hours prior to the
Closing Date at the office of DTC or its designated custodian (the
“ Designated Office ”). The time and date of
such delivery and payment shall be 9:30 a.m., New York City time,
on September 16, 2009 or such other time and date as the
Representatives and the Company may agree upon in writing. Such
time and date are herein called the “ Closing Date
.”
(d) The
documents to be delivered on the Closing Date by or on behalf of
the parties hereto pursuant to Section 6 hereof, including the
cross-receipt for the Securities and any additional certificates
requested by the Underwriters pursuant to Section 6(h) hereof, will
be delivered at such time and date at the offices of Baker Botts
L.L.P., One Shell Plaza, 910 Louisiana, Houston, Texas 77002-4995
or such other location as the Representatives and the Company may
agree in writing (the “ Closing Location ”), and
the Securities will be delivered at the Designated Office, all on
the Closing Date. A meeting will be held at the Closing Location at
1:00 p.m., New York City time or at such other time as the
Representatives and the Company may agree in writing, on the New
York Business Day next preceding the Closing Date, 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 2, “ New
York Business Day ” shall mean each Monday, Tuesday,
Wednesday,
8
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.
(e) If
the option provided in Section 2(b) hereof is exercised after the
New York Business Day prior to the Closing Date, the Company will
deliver the Option Shares (at the expense of the Company) to the
Representatives on the date specified by the Representatives (which
shall be the third New York Business Day after exercise of the said
option) for the respective accounts of the Underwriters, against
payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by
wire transfer of Federal (same day) funds to a commercial bank
account located in the United States specified by the Company. If
settlement for the Option Shares occurs after the Closing Date, the
Company will deliver to the Representatives on the settlement date
for the Option Shares, and the obligation of the Underwriters to
purchase the Option Shares shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the
Closing Date pursuant to Section 6 hereof.
3. Free
Writing Prospectuses.
(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 Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the
1933 Act, other than a free writing prospectus the use of which has
been consented to by the Company and the Representatives; provided
that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the following free writing
prospectuses: the electronic road show with respect to the
Securities. Any other free writing prospectus subsequently
consented to by the Representatives and the Company is herein
called a “ Permitted Free Writing Prospectus ”;
each Underwriter, severally and not jointly, 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 Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the
1933 Act, other than a Permitted Free Writing Prospectus or a free
writing prospectus that is not required to be filed by the Company
pursuant to Rule 433.
(b) The
Company and the Representatives have complied and will comply with
the requirements of Rule 433 under the 1933 Act applicable to
any free writing prospectus, including timely Commission filing
where required and legending.
(c) The
Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus or other Issuer Free Writing
Prospectus any event has occurred that results in such Permitted
Free Writing Prospectus or other Issuer Free Writing Prospectus
conflicting with the information in the Registration Statement, the
Preliminary Prospectus or the Prospectus, or the Pricing Disclosure
Package including an untrue statement of a material fact or
omitting to state any material fact necessary in order to make the
statements therein, in 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
9
Underwriter a
free writing prospectus or other document, the use of which has
been consented to by the Representatives, which will correct such
conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or
omissions in the Pricing Disclosure Package made in reliance upon
and in conformity with information furnished in writing to the
Company by, or through the Representatives on behalf of, any
Underwriter expressly for use therein.
4. Covenants
and Agreements.
The
Company covenants and agrees with each of the
Underwriters:
(a) That
the Company will furnish without charge to the Underwriters a copy
of the Registration Statement, including all documents incorporated
by reference therein and exhibits filed with the Registration
Statement (other than exhibits which are incorporated by reference
and have previously been so furnished), and, during the period
mentioned in paragraph (c) below, as many written and
electronic copies of the Preliminary Prospectus, the Pricing
Disclosure Package and the Prospectus, any documents incorporated
by reference therein at or after the date thereof (including
documents from which information has been so incorporated) and any
supplements and amendments thereto as each Underwriter may
reasonably request;
(b) That
the Company will cause the Preliminary Prospectus and the
Prospectus to be filed pursuant to, and in compliance with, Rule
424(b) and will promptly advise the Underwriters (i) when any
amendment to the Registration Statement shall have been filed;
provided, that, with respect to documents filed pursuant to the
1934 Act and incorporated by reference into the Registration
Statement, such notice shall only be required during such time as
the Underwriters are required in the reasonable opinion of the
Representatives, based on advice of Dewey & LeBoeuf LLP,
counsel for the Underwriters, to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the 1933 Act),
(ii) of any request by the Commission for any amendment of the
Registration Statement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose or pursuant to Section 8A of the
1933 Act against the Company or related to the offering,
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, and (v) of the receipt by the
Company of any notice from the Commission pursuant to
Rule 401(g)(2) of the 1933 Act. So long as any Underwriter is
required in the reasonable opinion of the Representatives, based on
advice of Dewey & LeBoeuf LLP, to deliver a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the 1933
Act), the Company will not file any amendment to the Registration
Statement or supplement to the Preliminary Prospectus or the
Prospectus to which the Representatives or Dewey & LeBoeuf LLP
shall have reasonably objected in writing and the Company shall
furnish one copy of every such amendment or supplement to each of
the Representatives and to Dewey & LeBoeuf LLP. If the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement, the Company will take such steps to
obtain the lifting of that order as promptly as practical. If the
Company receives a notice from
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the Commission
pursuant to Rule 401(g)(2) of the 1933 Act, the Company will
promptly take such steps including, without limitation, amending
the Registration Statement or filing a new registration statement,
at its own expense, as may be necessary to permit offers and sales
of the Securities by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new
registration statement);
(c) That
if, at any time when in the reasonable opinion of the
Representatives, based on advice of Dewey & LeBoeuf LLP, the
information in the Pricing Disclosure Package or the Prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the
1933 Act) is required by law to be delivered by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary,
in the reasonable opinion of the Representatives, based on advice
of Dewey & LeBoeuf LLP, or counsel for the Company, to amend or
supplement the Pricing Disclosure Package or the Prospectus or
modify the information incorporated by reference therein in order
to make the statements therein, in light of the circumstances
existing when the information in the Pricing Disclosure Package or
the Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is delivered to a purchaser, not
misleading, or if it shall be necessary in the reasonable opinion
of any such counsel, to amend or supplement the Pricing Disclosure
Package or the Prospectus or modify such information to comply with
law, the Company will forthwith (i) prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to whom
Securities may have been sold by the Underwriters and to any other
dealers upon reasonable request, either amendments or supplements
to the Pricing Disclosure Package or the Prospectus or
(ii) file with the Commission documents incorporated by
reference in the Pricing Disclosure Package and Prospectus, which
shall be so supplied to the Underwriters and such dealers, in
either case so that the statements in the Pricing Disclosure
Package or the Prospectus as so amended, supplemented or modified
will not, in light of the circumstances when the information in the
Pricing Disclosure Package or the Prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the 1933 Act) is
delivered to a purchaser, be misleading or so that the Pricing
Disclosure Package and the Prospectus will comply with
law;
(d) The
Company will not for a period of 90 days following the date
hereof, without the prior written consent of the Representatives,
(i) offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate
of the Company), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the 1934 Act with respect to, any
shares of Common Stock or any securities convertible into, or
exchangeable for, shares of Common Stock (other than the
Securities), or publicly announce an intention to effect any such
transaction, 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 Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such
11
other
securities, in cash or otherwise; provided , however
, that the Company may (1) issue and sell the Securities,
(2) issue Common Stock or securities convertible into or
exchangeable for Common Stock upon exercise of an option or warrant
or conversion of a security outstanding on the date of the
Prospectus, (3) issue Common Stock or securities convertible
into or exchangeable for Common Stock in amounts permitted on the
date hereof under the Company’s employee or non-employee
director stock option plans, benefit plans and long-term incentive
plans and (4) issue Common Stock or securities convertible into or
exchangeable for
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