Exhibit 1
NORTHEAST UTILITIES
20,000,000 COMMON
SHARES,
$5 PAR VALUE PER SHARE
UNDERWRITING
AGREEMENT
December 6, 2005
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
As Representatives of the
several
Underwriters named in
Schedule 1 attached hereto,
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c/o
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Lehman Brothers Inc.
745
Seventh Avenue
New
York, New York 10019
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J.P.
Morgan Securities Inc.
270
Park Avenue
New
York, New York 10017
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Ladies and Gentlemen:
Northeast Utilities, a Massachusetts
voluntary association (the “ Company ”),
proposes to sell an aggregate of 20,000,000 shares (the
“ Firm Shares ”) of the Company’s common
shares, par value $5 per share (the “ Common Shares
”). In addition, the Company proposes to grant to
the underwriters (the “ Underwriters ”) named in
Schedule 1 attached to this agreement (this “
Agreement ”) options to purchase up to an aggregate of
3,000,000 shares of the Common Shares on the terms set forth in
Section 2 (the “ Option Shares ”). The
Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the “ Shares .” This
is to confirm the agreement concerning the purchase of the Shares
from the Company by the Underwriters.
1.
Representations, Warranties and
Agreements of the Company and the Underwriters
.
(a)
The Company represents, warrants and
agrees that:
(i)
A registration statement on Form S-3
(File No. 333-128811) relating to the Shares (i) has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been
delivered by the Company to you as the
representatives (the “ Representatives ”) of the
Underwriters. As used in this Agreement:
(A)
“ Effective Date ”
means any date as of which any part of such registration statement
relating to the Shares became, or is deemed to have become,
effective under the Securities Act in accordance with the Rules and
Regulations;
(B)
“ Applicable Time ”
means 5:45 p.m. (New York City time) on the date of this
Agreement;
(C)
“ Prospectus ” means
the final prospectus relating to the Shares, including any
prospectus supplement thereto relating to the Shares, as filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(D)
“ Preliminary Prospectus
” means any preliminary prospectus relating to the Shares
included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Shares;
(E)
“ Registration Statement
” means, collectively, the various parts of such registration
statement, each as amended as of the Effective Date for such part,
including any Preliminary Prospectus or the Prospectus and all
exhibits to such registration statement;
(F)
“ Issuer Free Writing
Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company and approved
by the Company or used or referred to by the Company in connection
with the offering of the Shares; and
(G)
“ Pricing Disclosure Package
” means, as of the Applicable Time, the most recent
Preliminary Prospectus, together with each Issuer Free Writing
Prospectus used or referred to by the Company on or before the
Applicable Time and the information set forth on Schedule
1(a)(i)(G) hereto.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule
424(b) on or prior to the date hereof. Any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include any annual
report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding for such purpose has been
instituted or threatened by the Commission. The Commission
has not notified the Company of any objection to the use of the
form of the Registration Statement.
(ii)
(i) At the time of initial filing of the
Registration Statement, (ii) at the earliest time thereafter that
the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Shares and
(iii) as of the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405 of the
Rules and Regulations. The conditions for use of Form S-3, as set
forth in the General Instructions thereto, have been satisfied or
relief therefrom has been granted by the Commission.
(iii)
The Registration Statement conformed and
will conform in all material respects on the Effective Date and on
the applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and
the Rules and Regulations. The Preliminary Prospectus
conformed, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) and
on the applicable Delivery Date to the requirements of the
Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder.
(iv)
The Registration Statement did 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;
provided that no representation or
warranty is made as to information
contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information
is specified in Section 8(e), except that the representations and
warranties set forth in this paragraph do not apply to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification on Form T-1 under the Trust Indenture
Act of 1939, as amended, of The Bank of New York Trust Company,
N.A.
(v)
The Prospectus will not, as of its date
and on the applicable Delivery 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, in the
light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Prospectus
in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(vi)
The documents incorporated by reference
in any Preliminary Prospectus or the Prospectus did not, and any
further documents filed and incorporated by reference therein will
not, when filed with the Commission, 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.
(vii)
The Pricing Disclosure Package did not,
as of the Applicable Time, 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 that no representation or warranty is
made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 8(e).
(viii)
Each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations on
the date of first use, and the Company has complied with any filing
requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Rules and Regulations. The Company
has not made any offer relating to the
Shares that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives. The
Company has retained in accordance with the Rules and Regulations
all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations. Schedule
1(a)(viii) hereto includes a complete list of all Issuer Free
Writing Prospectuses used in connection with the offering of the
Shares.
(ix)
Each of the Company and its Significant
Subsidiaries (as defined below) has been duly organized, is validly
existing and in good standing as a voluntary association,
corporation or other business entity under the laws of its
jurisdiction of organization and is duly qualified to do business
and in good standing as a foreign corporation or other business
entity in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such
qualification, except where the failure to be so qualified or in
good standing could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations,
shareholders’ equity, properties, business or prospects of
the Company and its Significant Subsidiaries taken as a whole (a
“ Material Adverse Effect ”). Each of the
Company and its Significant Subsidiaries has all power and
authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. The Company does not
own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Schedule 1(a)(ix) to this Agreement. None of the subsidiaries
of the Company (other than The Connecticut Light and Power Company,
Northeast Generation Company, Select Energy, Inc., NU Enterprises,
Inc. and Public Service Company of New Hampshire) is a
“significant subsidiary,” as such term is defined in
Rule 405 of the Rules and Regulations. Such significant
subsidiaries, together with Western Massachusetts Electric Company,
Yankee Energy System, Inc. and Yankee Gas Services Company are
collectively referred to as the “ Significant
Subsidiaries ” in this Agreement.
(x)
The Company has an authorized
capitalization as set forth in each of the most recent Preliminary
Prospectus and the Prospectus, and all of the issued capital shares
of the Company have been duly authorized and validly issued, are
fully paid and non-assessable, conform to the description thereof
contained in each of the most recent Preliminary Prospectus and the
Prospectus and were issued in compliance with federal and state
securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. All of
the Company’s options, warrants and other rights to purchase
or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued, conform
to the description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus and were issued
in
compliance with federal and state
securities laws. All of the issued shares of capital stock of
each subsidiary of the Company (as defined in Section 17) have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims as could
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xi)
The Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly authorized
and, upon payment and delivery in accordance with this Agreement,
will be validly issued, fully paid and non-assessable, will conform
to the description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus, will be issued in
compliance with federal and state securities laws and will be free
of statutory and contractual preemptive rights, rights of first
refusal and similar rights.
(xii)
The Company has all requisite corporate
power and authority to execute, deliver and perform its obligations
under this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by the
Company.
(xiii)
The execution, delivery and performance
of this Agreement by the Company, the consummation of the
transactions contemplated hereby and the application of the
proceeds from the sale of the Shares as described under “Use
of Proceeds” in each of the most recent Preliminary
Prospectus and the Prospectus will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, impose any lien, charge or encumbrance upon any property or
assets of the Company and its Significant Subsidiaries, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound
or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject; (ii) result in any
violation of the provisions of the declaration of trust, charter or
by-laws (or similar organizational documents) of the Company or any
of its Significant Subsidiaries; or (iii) result in any
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 Significant Subsidiaries or any of their
properties or assets.
(xiv)
Except for the registration of the Shares
under the Securities Act and the order of the Commission under the
Public Utility Holding Company Act of 1935, as amended, which such
order is in full force and effect, and such consents, approvals,
authorizations, registrations
or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and sale of the Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for
the execution, delivery and performance of this Agreement by the
Company, the consummation of the transactions contemplated hereby
and the application of the proceeds from the sale of the Shares as
described under “Use of Proceeds” in each of the most
recent Preliminary Prospectus and the Prospectus.
(xv)
There are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(xvi)
The Company has not sold or issued any
securities that would be integrated with the offering of the Shares
contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the
Commission.
(xvii)
Since the date as of which information is
given in the most recent Preliminary Prospectus and except as may
otherwise be described in the most recent Preliminary Prospectus
(including the documents incorporated by reference therein as of
the date hereof), neither the Company nor any of its Significant
Subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
most recent Preliminary 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, and, except as set forth on
Schedule 1(a)(xvii), since such date, there has not been any change
in the capital shares or long-term debt of the Company or any of
its Significant Subsidiaries or any adverse change, or any
development involving a prospective adverse change, in or affecting
the condition (financial or otherwise), results of operations,
shareholders’ equity, properties, management, business or
prospects of the Company and its Significant Subsidiaries taken as
a whole, in each case except as could not reasonably be expected to
have a Material Adverse Effect.
(xviii)
Since the date as of which information is
given in the most recent Preliminary Prospectus and except as may
otherwise be described
in the most recent Preliminary Prospectus
(including the documents incorporated by reference therein as of
the date hereof), the Company has not (i) incurred any
liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary
course of business, (ii) entered into any material transaction not
in the ordinary course of business (except in connection with the
sale of its competitive businesses) or (iii) declared or paid any
dividend on its capital stock.
(xix)
The historical financial statements
(including the related notes and supporting schedules) included or
incorporated by reference in the most recent Preliminary Prospectus
comply as to form in all material respects with the requirements of
Regulation S-X under the Securities Act and present fairly the
financial condition, results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in conformity with
accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods
involved.
(xx)
Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
consolidated subsidiaries, whose report appears in the most recent
Preliminary Prospectus or is incorporated by reference therein and
who have delivered the initial letter referred to in Section 7(f)
hereof, are independent registered public accountants as required
by the Securities Act and the Rules and Regulations.
(xxi)
The Company and each of its Significant
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 most
recent Preliminary Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Company
and its Significant Subsidiaries and as could not reasonably be
expected to have a Material Adverse Effect; and all assets held
under lease by the Company and its Significant Subsidiaries are
held by them under valid, subsisting and enforceable leases, with
such exceptions as do not materially interfere with the use made
and proposed to be made of such assets by the Company and its
subsidiaries and as could not reasonably be expected to have a
Material Adverse Effect.
(xxii)
Except as described in the most recent
Preliminary Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property or assets of the
Company or any of its Significant Subsidiaries is the subject that
could, in the aggregate, reasonably be
expected to have a Material Adverse
Effect or could, in the aggregate, reasonably be expected to have a
Material Adverse Effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(xxiii)
There are no legal or governmental
proceedings or contracts or other documents of a character required
to be described in the Registration Statement or the most recent
Preliminary Prospectus or, in the case of documents, to be filed as
exhibits to the Registration Statement or incorporated by reference
therein, that are not described and filed or incorporated by
reference therein as required. The statements made in the
most recent Preliminary Prospectus and Prospectus under the
captions “The Offering” and “Description of the
Securities Registered” insofar as they purport to constitute
summaries of the terms of statutes, rules or regulations, legal or
governmental proceedings or contracts and other documents,
constitute accurate summaries of the terms of such statutes, rules
and regulations, legal and governmental proceedings and contracts
and other documents in all material respects.
(xxiv)
No relationship, direct or indirect,
exists between or among the Company, on the one hand, and the
trustees, officers, shareholders, customers or suppliers of the
Company, on the other hand, that is required to be described in the
most recent Preliminary Prospectus or Prospectus which is not so
described.
(xxv)
No labor disturbance by the employees of
the Company or its Significant Subsidiaries exists or, to the
knowledge of the Company, is imminent that could reasonably be
expected to have a Material Adverse Effect.
(xxvi)
(i) Each “employee benefit
plan” (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended (“ ERISA
”)) for which the Company or any member of its
“Controlled Group” (defined as any organization which
is a member of a controlled group of corporations within the
meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the “ Code ”)) would have any liability
(each a “ Plan ”) has been maintained in
compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the
Code; (ii) with respect to each Plan subject to Title IV of ERISA
(a) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur, (b) no “accumulated funding deficiency” (within
the meaning of Section 302 of ERISA or Section 412 of the Code),
whether or not waived, has occurred or is reasonably expected to
occur, (c) the fair
market value of the assets under each
Plan exceeds the present value of all benefits accrued under such
Plan (determined based on those assumptions used to fund such Plan)
and (d) neither the Company or any member of its Controlled Group
has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA (other than contributions to the Plan or premiums
to the PBGC in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan”, within the
meaning of Section 4001(c)(3) of ERISA); and (iii) each Plan that
is intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such
qualification.
(xxvii)
The Company and each of its Significant
Subsidiaries have filed all federal, state, local and foreign
income and franchise tax returns required to be filed through the
date hereof, subject to permitted extensions, and have paid all
taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its Significant Subsidiaries,
nor does the Company have any knowledge of any tax deficiencies
that could, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(xxviii)
Neither the Company nor any of its
Significant Subsidiaries (i) is in violation of its declaration of
trust, charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation of any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over it or its property or assets or has
failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except
in the case of clauses (ii) and (iii), to the extent any such
conflict, breach, violation or default could not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(xxix)
Neither the Company nor any Significant
Subsidiary is, and as of the applicable Delivery Date and, after
giving effect to the offer and sale of the Shares and the
application of the proceeds therefrom as described under “Use
of Proceeds” in the most recent Preliminary Prospectus and
the Prospectus, none of them will be, (i) an “investment
company” within the meaning of such term under the Investment
Company Act of 1940, as amended (the “ Investment Company
Act ”), and the rules and regulations of the Commission
thereunder or (ii) a
“business development
company” (as defined in Section 2(a)(48) of the Investment
Company Act).
(xxx)
The Company and each of its subsidiaries
(i) make and keep accurate books and records and (ii) maintain and
has maintained effective internal control over financial reporting
as defined in Rule 13a-15 under the Exchange Act and a system of
internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance
with management’s general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of the
Company’s financial statements in conformity with accounting
principles generally accepted in the United States and to maintain
accountability for its assets, (C) access to the Company’s
assets is permitted only in accordance with management’s
general or specific authorization and (D) the recorded
accountability for the Company’s assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxxi)
As of the date of the Company’s
most recent certification pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002, the Company maintains systems of
internal accounting controls and processes sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles; and (iii) assets are safeguarded from loss
or unauthorized use. The Company evaluated the design and operation
of their disclosure controls and procedures to determine whether
they are effective in ensuring that the disclosure of required
information is timely made in accordance with the Exchange Act and
the rules and forms of the Commission. These evaluations were made
under the supervision and with the participation of management,
including the principal executive officer and principal financial
officer of the Company, within the 90-day period prior to the
filing of the most recent Quarterly Report on Form 10-Q. The
principal executive officer and principal financial officer have
concluded, based on their review, that the disclosure controls and
procedures, as defined by Exchange Act Rules 13a-15(e) and
15(d)-14(c), are effective to ensure that information required to
be disclosed by the Company in reports that it files under the
Exchange Act is recorded, processed, summarized, and reported
within the time periods specified in Commission rules and forms. No
significant changes were made to the Company's internal controls or
other factors that could significantly affect these controls
subsequent to the date of their evaluation.
(xxxii)
Since the date of the most recent balance
sheet of the Company and its consolidated subsidiaries reviewed or
audited by Deloitte
& Touche LLP and the audit committee
of the board of trustees of the Company, (i) the Company has not
been advised of (A) any significant deficiencies in the design
or operation of internal controls that could adversely affect the
ability of the Company and each of its subsidiaries to record,
process, summarize and report financial data, or any material
weaknesses in internal controls and (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the internal controls of the Company and each
of its subsidiaries, and (ii) there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
(xxxiii)
There is and has been no failure on the
part of the Company and any of the Company’s trustees or
officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act” ).
(xxxiv)
The Company has not distributed and,
prior to the later to occur of any Delivery Date and completion of
the distribution of the Shares, will not distribute any offering
material in connection with the offering and sale of the Shares
other than any Preliminary Prospectus, the Prospectus and the
Issuer Free Writing Prospectus set forth on Schedule 1(a)(viii)
hereto.
(xxxv)
Other than actions taken by the
underwriters as described in the most recent Preliminary
Prospectus, the Company has not taken and will not take, directly
or indirectly, any action designed to or that has constituted or
that could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the
Shares.
(xxxvi)
The Shares has been approved for listing,
subject to official notice of issuance, on the New York Stock
Exchange.
(xxxvii)
The Company and each of its Significant
Subsidiaries have such permits, licenses, patents, franchises,
certificates of need and other approvals or authorizations of
governmental or regulatory authorities (“ Permits
”) as are necessary under applicable law to own their
properties and conduct their businesses in the manner described in
the most recent Preliminary Prospectus, except for any of the
foregoing that could not reasonably be expected to have a Material
Adverse Effect; each of the Company and its Significant
Subsidiaries has fulfilled and performed all of its obligations
with respect to the Permits, and no event has occurred that allows,
or after notice or lapse of time would allow,
revocation or termination thereof or
results in any other impairment of the rights of the holder or any
such Permits, except for any of the foregoing that could not
reasonably be expected to have a Material Adverse
Effect.
(xxxviii)
Except as described in the most recent
Preliminary Prospectus (including the documents incorporated by
reference therein as of the date hereof), the Company and each of
its Significant Subsidiaries are (i) in compliance with any and all
applicable federal, state, local and foreign laws, regulations,
ordinances, rules, orders, judgments, decrees, permits or other
legal requirements relating to the protection of human health and
safety, the environment, natural resources or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws ”), which compliance includes
obtaining, maintaining and complying with all permits and
authorizations and approvals required by Environmental Laws to
conduct their respective businesses and (ii) have not received
notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except in the
case of clause (i) or (ii) where such non-compliance with or
liability under Environmental Laws could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; and neither the Company nor any of its Significant
Subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any other
similar Environmental Law, except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
(xxxix)
The operations of the Company and its
Significant Subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, 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
Significant Subsidiaries with respect to the Money Laundering Laws
is pending or, to the best knowledge of the Company, threatened,
except, in each case, as would not reasonably be expected to have a
Material Adverse Effect.
(xl)
Neither the Company nor any of its
Significant Subsidiaries nor, to the knowledge of the Company, any
trustee, director, officer, agent, employee or affiliate of the
Company or any of its Significant Subsidiaries is currently subject
to any U.S. 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 Significant 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.
Any certificate signed by any officer of
the Company and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Shares shall be
deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
(b)
The Underwriters represent, warrant and
agree that they have not used, and will not use without the written
consent of the Issuer, any free writing prospectus, other than the
Issuer Free Writing Prospectus listed on Schedule 1(a)(viii) to
this Agreement.
2.
Purchase of the Shares by the
Underwriters. On the
basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company
agrees to sell 20,000,000 shares of the Firm Shares to the
several Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase the number of shares of the Firm
Shares set forth opposite that Underwriter’s name in
Schedule 1 hereto. Each Underwriter shall be obligated
to purchase from the Company that number of shares of the Firm
Shares that represents the same proportion of the number of shares
of the Firm Shares to be sold b
