Exhibit 1(b)
Execution Version
WAL-MART STORES,
INC.
DEBT SECURITIES
UNDERWRITING
AGREEMENT
May 14, 2009
The Underwriters Listed on Schedule
I
to the applicable Pricing Agreement (as defined
herein)
Ladies and Gentlemen:
From time to time WAL-MART STORES,
INC., a Delaware corporation (the “Company”), proposes
to enter into one or more Pricing Agreements (each, a
“Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain of its debt
securities (the “Securities”) specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement,
the “Designated Securities”).
The terms of any particular issuance
of Designated Securities and the rights of the holders of such
Designated Securities shall be as specified in the applicable
Pricing Agreement and in or pursuant to the indenture (the
“Indenture”) identified in such Pricing Agreement.
References in this Agreement to “the Pricing Agreement”
are to the applicable Pricing Agreement relating to the particular
issuance and sale of Designated Securities specified
therein.
1. Introduction . Particular
sales of Designated Securities may be made from time to time to the
Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such
Designated Securities in the Pricing Agreement will act as
representatives (the “Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Securities or as an obligation of
any Underwriter to purchase any of the Securities. The obligation
of the Company to issue and sell any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. The Pricing Agreement shall specify,
with respect to the purchase and sale of the Designated Securities
pursuant thereto, (a) in Schedule I thereto (i) the names
of the Underwriters of the Designated Securities and (ii) the
principal amount of Designated Securities to be purchased by each
Underwriter at the Time of Delivery (as defined in Section 4
hereof) and (b) in Schedule II thereto (i) the title or
titles of the Designated Securities, (ii) the aggregate
principal amount or amounts of the Designated Securities,
(iii) the price or prices of the Designated Securities to the
public, (iv) the purchase price or prices of the Designated
Securities to the Underwriters, and, to the extent applicable, any
selling concession or concessions and reallowance concession or
concessions applicable to the Underwriters and dealers, as the case
may be, (v) specified funds, if not immediately available
funds, for payment of the purchase price for the Designated
Securities, (vi) the title
of the Indenture under which the Designated
Securities are being issued, (vii) the maturity or maturities
of the Designated Securities, (viii) the interest rate or
rates of the Designated Securities or the manner in which the
interest rate or rates are to be determined, (ix) the interest
payment dates of the Designated Securities, (x) the record
dates for the payment of interest on the Designated Securities,
(xi) the redemption provisions, if any, of the Designated
Securities, (xii) the sinking fund provisions, if any, of the
Designated Securities, (xiii) the Time of Delivery,
(xiv) the closing location with respect to the closing of the
sale of the Designated Securities pursuant to this Agreement and
the Pricing Agreement, (xv) the name or names and address or
addresses of the Representatives of the Underwriters,
(xvi) such other terms, conditions and other provisions of the
Designated Securities as are established in accordance with the
Indenture and (xvii) such other terms, conditions and other
provisions that supplement, amend or modify this Agreement with
respect to the Designated Securities or the Indenture. The Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and the
Pricing Agreement shall be several and not joint.
2. Representations, Warranties
and Agreements of the Company . The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) An “automatic shelf
registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities
Act”)) in respect of the Securities (File
No. 333-156724) has been filed on Form S-3 with the Securities
and Exchange Commission (the “Commission”); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement but including all documents incorporated by reference in
each prospectus contained therein, delivered to the Representatives
for each of the other Underwriters, became effective under the
Securities Act upon filing with the Commission; no other document
with respect to such registration statement or any such document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission except for (i) any
prospectuses, preliminary prospectus supplements and prospectus
supplements previously filed in connection with the offer and sale
of Securities (other than the Designated Securities) pursuant to
such registration statement, (ii) any prospectus and
preliminary prospectus supplement relating to the Designated
Securities and (iii) any other documents identified in the
Pricing Agreement with respect to the Designated Securities; no
stop order suspending the effectiveness of such registration
statement or any post-effective amendment thereto has been issued,
no proceeding for that purpose has been initiated or threatened by
the Commission, and no notice of objection of the Commission to the
use of such registration statement or any post-effective amendment
thereto for the registration of the offer and sale of the
Securities by the Company pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
prior to or on the date of the Pricing Agreement relating to the
Designated Securities, being hereinafter called the “Base
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Designated
Securities filed with the Commission pursuant to Rule 424(b) under
the Securities Act, being hereinafter called a
“Preliminary
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Prospectus”; the various parts
of such registration statement, including all exhibits thereto
(other than the Form T-1 of J.P. Morgan Trust Company, National
Association) and any prospectus supplement relating to the
Designated Securities that is filed with the Commission and deemed
by Rule 430B under the Securities Act to be part of such
registration statement, each at the time such part of such
registration statement became effective, being hereinafter called
the “Registration Statement”; the Base Prospectus, as
amended or supplemented immediately prior to the Applicable Time
(as defined in Section 2(d) hereof), including, without
limitation, any Preliminary Prospectus relating to the Designated
Securities, being hereinafter called the “Pricing
Prospectus”; the form of the final prospectus (including the
final prospectus supplement) relating to the Designated Securities
filed with the Commission pursuant to Rule 424(b) under the
Securities Act in accordance with Section 5(a) hereof being
hereinafter called the “Prospectus”; any reference
herein to the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of such prospectus; any reference to any amendment or
supplement to the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such prospectus
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated by reference in such
prospectus; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
on Form 10-K of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the applicable effective date of
the Registration Statement and that is incorporated by reference in
the Registration Statement; and any “issuer free writing
prospectus” (as defined in Rule 433(h) under the Securities
Act) relating to the Designated Securities being hereinafter
referred to as an “Issuer Free Writing
Prospectus”);
(b) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus or any
amendment or supplement thereto, 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 Securities 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
Securities 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
of Designated Securities through the Representatives expressly for
use therein;
(c) The Registration Statement and
the Pricing Prospectus conform, and the Prospectus and any further
post-effective amendments to the Registration Statement and the
Prospectus will conform, as of the date on which they become
effective or
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are filed with the Commission, as
the case may be, in all material respects to the requirements of
the Securities Act and the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”), and the rules and
regulations of the Commission thereunder, and do not and will not,
as of the applicable effective dates as to the Registration
Statement and any post-effective amendments thereto, as of the
applicable filing date as to the Pricing Prospectus and as of the
applicable filing date and the Time of Delivery 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
of Designated Securities through the Representatives expressly for
use therein;
(d) The Pricing Prospectus, together
with the pricing terms for the offering of the Designated
Securities and the terms and conditions of the Designated
Securities specified in the Final Term Sheet (as defined in
Section 5(a) hereof) prepared and filed pursuant to
Section 5(a) hereof, did not, as of the time and date
designated in the Pricing Agreement as the “Applicable
Time” (which the Company and the Representatives have agreed
is, as to the issue and sale of the Designated Securities,
immediately prior to the time when sales of the Designated
Securities to the public will be first confirmed orally or in
writing), contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; 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 of Designated Securities
through the Representatives expressly for use therein;
(e) The Company has been, since the
initial filing of the Registration Statement, and continues to be a
“well-known seasoned issuer” and has not been, since
such filing of the Registration Statement, and continues not to be
an “ineligible issuer” (as such terms are defined in
Rule 405 under the Securities Act); and the Company is not the
subject of a pending proceeding under Section 8A of the
Securities Act;
(f) The Company has not made (other
than, if applicable, as listed on Schedule II to the Pricing
Agreement), and will not make (other than the Final Term Sheet
prepared and filed pursuant to Section 5(a) hereof with
respect to the Designated Securities), any offer relating to the
Designated Securities that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Securities
Act), without the prior consent of the Representatives; the Company
will comply with the requirements of Rule 433 under the Securities
Act with respect to any such free writing prospectus; any such free
writing prospectus will not, as of its issue date and through the
Time of Delivery for such Designated Securities, include any
information that conflicts with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus;
and any such free writing prospectus, when taken together with the
information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus, did not, when issued or filed
pursuant to Rule 433 under the Securities Act, and does not contain
an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
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(g) Neither the Company nor any of
the corporations, companies or other entities of which the Company
owns, directly or indirectly, a majority of the outstanding equity
interests or which the Company otherwise controls (collectively,
the “Subsidiaries”) has sustained, since the date of
the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus and the 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 that was
or is material to the general affairs, management, financial
position, shareholders’ equity, results of operations or
internal control over financial reporting of the Company and its
Subsidiaries considered as one enterprise, otherwise than as set
forth in the Pricing Prospectus; and, since the respective dates as
of which information is given in the Pricing Prospectus and the
Prospectus, there has not been any material change in the capital
stock or long-term debt of the Company and its Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity, results
of operations or internal control over financial reporting of the
Company and its Subsidiaries considered as one enterprise,
otherwise than as set forth in the Pricing Prospectus and the
Prospectus;
(h) The Company and its Subsidiaries
have all ownership rights in all of the real property and all of
the 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 and the Prospectus or such as do not,
individually or in the aggregate, materially and adversely affect
the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise and do not interfere with
the use made and proposed to be made of such property by the
Company and its Subsidiaries; and any real property and buildings
held under lease or equivalent agreement by the Company and its
Subsidiaries are held by them under valid, subsisting and
enforceable leases or equivalent agreements with such exceptions as
do not, individually or in the aggregate, materially and adversely
affect the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise;
(i) The Company and its Subsidiaries
own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor any of
its Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any
trademarks, service marks or trade names that, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the general affairs,
management, financial position, shareholders’ equity, results
of operations or internal control over financial reporting of the
Company and its Subsidiaries considered as one
enterprise;
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(j) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus and the
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; and each Subsidiary of the Company has been duly
incorporated or organized and is validly existing in good standing
under the laws of its jurisdiction of incorporation or
organization;
(k) The Company has an authorized
capitalization as set forth in the Pricing Prospectus and the
Prospectus; all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable; and all of the issued
shares of capital stock or equivalent equity interests of each
Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except as set forth in the
Pricing Prospectus and the Prospectus, and, in the case of Wal-Mart
de Mexico, S.A. de C.V., approximately 69% of the issued and
outstanding shares thereof as of the date hereof, or as do not,
individually or in the aggregate, materially and adversely affect
the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise;
(l) The Designated Securities have
been duly authorized, and, when such Designated Securities are
issued and delivered pursuant to this Agreement and the Pricing
Agreement, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles, and entitled to the benefits provided
by the Indenture; the Indenture has been duly authorized, executed
and delivered, and duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in
the Pricing Prospectus (taken together with the Final Term Sheet)
and the Prospectus;
(m) This Agreement has been duly
authorized, executed and delivered, and the Pricing Agreement will
be duly authorized, executed and delivered on the date thereof, by
the Company;
(n) The issue and sale of the
Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or
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constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which (i) the Company is a party or
by which the Company is bound or to which any of the property or
assets of the Company is subject or (ii) any of the
Company’s Subsidiaries is a party or by which any of its
Subsidiaries is bound or to which any of the property or assets of
any of its Subsidiaries is subject, which conflict, breach,
violation or default, in the case of this clause (ii) (but not
clause (i)), would materially and adversely affect the general
affairs, management, financial position, shareholders’
equity, results of operations or internal control over financial
reporting of the Company and its Subsidiaries considered as one
enterprise, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation or Amended
and Restated Bylaws of the Company, each as amended to date, or 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; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this Agreement
or the Pricing Agreement or the Indenture, except (i) such as
have been, or will have been prior to the Time of Delivery,
obtained under the Securities Act and the Trust Indenture Act,
(ii) such, if any, as have been, or will have been prior to
the Time of Delivery, obtained under securities laws and
regulations of the European Union or any foreign country to which
the Company is, has or will become subject due to actions taken, or
omitted, by the Company or by the Underwriters with the knowledge
of the Company and (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or “Blue Sky” laws in connection
with the purchase and distribution of the Designated Securities by
the Underwriters;
(o) Other than as set forth in the
Pricing Prospectus and the 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 that, if determined
adversely to the Company or any of its Subsidiaries, would,
individually or in the aggregate, have a material adverse effect on
the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others; and
(p) Ernst & Young LLP,
which has audited and reported on certain financial statements of
the Company and its Subsidiaries and the Company’s internal
control over financial reporting and management’s assessment
thereof, is an independent registered public accounting firm with
respect to the Company and its Subsidiaries as required by the
Securities Act and the Exchange Act and the rules and regulations
of the Commission and the Public Company Accounting Oversight
Board.
For purposes of this Section 2
as well as for Section 8 hereof, references to “the
Pricing Prospectus and the Prospectus” are to each of such
prospectuses as a separate or stand-alone document (and not the two
such prospectuses taken together), so that representations,
warranties, agreements, conditions and legal opinions will be made,
given or measured independently in respect of each of the Pricing
Prospectus and the Prospectus.
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3. Offer and Sale of Designated
Securities . Upon the execution of the Pricing Agreement
applicable to the Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the
several Underwriters propose to offer such Designated Securities
for sale upon the terms and conditions set forth in the
Prospectus.
4. Payment and Settlement for
Designated Securities . Designated Securities to be purchased
by each Underwriter pursuant to the Pricing Agreement, in
definitive form to the extent practicable, and in such authorized
denominations and registered in such name or names as the
Representatives may request upon at least twenty-four hours’
prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives, against payment by such
Underwriter or on its behalf of the purchase price therefor by one
or more wire transfers in immediately available funds (or such
other funds as specified in the Pricing Agreement), payable to the
order of the Company, all at the place and time and date specified
in the Pricing Agreement or at such other place and time and date
as the Representatives and the Company may agree upon in writing,
such time and date being herein called the “Time of
Delivery” for such Designated Securities.
5. Further Agreements of the
Company . The Company agrees with each of the Underwriters of
any Designated Securities:
(a) (i) To prepare the Prospectus in
relation to the Designated Securities in a form approved by the
Representatives and to file the Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission’s
close of business on the second business day following the
execution and delivery of the Pricing Agreement or, if applicable,
such earlier time as may be required by Rule 424(b) under the
Securities Act; (ii) to make no further amendment or any
supplement to the Registration Statement or the Prospectus after
the date of the Pricing Agreement relating to the Designated
Securities and prior to the Time of Delivery for the Designated
Securities that shall be disapproved by the Representatives
promptly after reasonable notice thereof ( provided, however
, this clause (ii) shall, in the case of any periodic or
current report that the Company is required to file pursuant to
Section 13(a), 13(c) or Section 15(d) under the Exchange
Act prior to or at the Time of Delivery, apply to the extent
practicable in the light of the circumstances); (iii) to
advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the
Representatives with copies thereof; (iv) to prepare a final
term sheet, containing solely a description of the Designated
Securities, substantially in the form of Annex II hereto and
approved by the Representatives (the “Final Term
Sheet”) and to file the Final Term Sheet pursuant to Rule
433(d) under the Securities Act within the time period prescribed
by such Rule; (v) to file within the time period prescribed by
Rule 433(d) under the Securities Act, all other material required
to be filed by the Company with the Commission pursuant to Rule
433(d) under the Securities Act; (vi) to file by the filing
deadlines prescribed by the Exchange Act and the rules thereunder,
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long
as the delivery of a prospectus is required in connection with the
offering or sale of such Designated Securities, and during such
period to advise the Representatives promptly after it files any
post-effective
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amendment to the Registration
Statement of the time when such post-effective amendment to the
Registration Statement has been filed and becomes effective or
promptly after it files any amendment or supplement to the
Prospectus or any amended Prospectus, of the time when it files
such amendment or supplement to the Prospectus or any amended
Prospectus with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Designated Securities, of the
suspension of the qualification of the Designated Securities for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, of the receipt
from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act for the
registration of the offer and sale of the Designated Securities, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional
information relating to the Registration Statement, the Prospectus
or any amendment or supplement thereto or the offer and sale of the
Designated Securities; and (vii) in the event of the issuance
of any such stop order or any such order preventing or suspending
the use of any prospectus relating to the Designated Securities or
suspending any such qualification, or of any such notice of
objection, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify the Designated Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
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 such
Designated Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction (it being recognized that, solely for purposes of
this Section 5(b), the Company shall not be required by the
Representatives, without its consent, to subject itself to any
securities laws or regulations of the European Union, or of any
foreign country, to which the Company was not subject immediately
prior to the offering and sale of such Designated
Securities);
(c) To furnish the Underwriters with
copies of the Prospectus in such quantities as the Representatives
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 Securities Act) is required at any time in
connection with the offering or sale of the Designated Securities
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 Securities Act) is delivered, not misleading, or,
if for any other reason it shall be necessary 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 Securities Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and,
upon their request, to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to
the Prospectus that will correct such statement or omission or
effect such compliance;
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(d) To make generally available to
its security holders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company, Rule 158 under the Securities Act);
(e) During the period beginning from
the date of the Pricing Agreement and continuing to and including
the earlier of (i) the termination of trading restrictions for
the Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for the
Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company that mature
more than one year after such Time of Delivery and that are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) To furnish to the holders of the
Designated Securities, upon such holders’ request, as soon as
practicable after the end of each fiscal year, an annual report
(including a balance sheet and statements of income,
shareholders’ equity and cash flows of the Company and its
consolidated Subsidiaries certified by an independent registered
public accounting firm) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information
of the Company and its Subsidiaries for such quarter in reasonable
detail;
(g) During a period of five years
from the effective date of the Registration Statement, to furnish
to the Representatives copies of all periodic or current reports or
other communications (financial or other) of the Company furnished
to its shareholders, and deliver to the Representatives (i) as
soon as they are available, copies of any periodic or current
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the
Designated Securities or any class of securities of the Company is
listed ( provided, however, that the Company shall be deemed
to have furnished and delivered such documents if and when such
documents are available through the Commission’s EDGAR System
on the Commission’s website); and (ii) such additional
information concerning the business and financial condition of the
Company as the Representatives may from time to time reasonably
request (such financial information and statements to be on a
consolidated basis in reports furnished to its shareholders
generally or to the Commission);
(h) To pay the required Commission
registration fees relating to the Designated Securities within the
time period required by Rule 456(b)(1) under the Securities Act
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) under the Securities Act;
10
(i) If required by Rule 430B(h)
under the Securities Act, to prepare a prospectus in a form
approved by the Representatives and to file such prospectus
pursuant to Rule 424(b) under the Securities Act not later than may
be required by such Rule; and to make no further amendment or
supplement to such prospectus that shall be disapproved by the
Representatives promptly after reasonable notice thereof;
and
(j) To use the net proceeds received
by it from the sale of the Designated Securities pursuant to this
Agreement and the Pricing Agreement in the manner specified in the
Prospectus, including in any supplement thereto, relating to the
offer and sale of such Designated Securities.
6. Representations, Warranties
and Agreements of the Underwriters . Each Underwriter
represents and warrants to, and agrees with, the Company and each
other Underwriter that:
(a) Such Underwriter has not made,
and will not make (other than as permitted by Section 6(b)
hereof), any offer relating to the Designated Securities that would
constitute a “free writing prospectus” (as defined in
Rule 405 under the Securities Act), without the prior consent of
the Company and the Representatives;
(b) Such Underwriter has not used,
and will not use, any free writing prospectus that contains the
final terms of the Designated Securities unless such terms have
previously been included in a free writing prospectus filed with
the Commission in accordance with Rule 433 under the Securities
Act, without the prior consent of the Company and the
Representatives; provided, however, that each of the
Underwriters may use a term sheet relating to the Designated
Securities containing customary information not inconsistent with
the Final Term Sheet prepared and filed pursuant to
Section 5(a) hereof without the prior consent of the Company
or the Representatives; and
(c) Such Underwriter is not subject
to any pending proceeding under Section 8A of the
Sec
