LOWE’S COMPANIES, INC. (a North Carolina corporation) UNDERWRITING AGREEMENT
Exhibit 1.1
▇▇▇▇’▇ COMPANIES, INC.
(a North Carolina corporation)
(a North Carolina corporation)
4.625% Notes due April 15, 2020
5.800% Notes due April 15, 2040
5.800% Notes due April 15, 2040
Dated: April 12, 2010
▇▇▇▇’▇ COMPANIES, INC.
(a North Carolina corporation)
(a North Carolina corporation)
4.625% Notes due April 15, 2020
5.800% Notes due April 15, 2040
5.800% Notes due April 15, 2040
April 12, 2010
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters
Ladies and Gentlemen:
▇▇▇▇’▇ Companies, Inc., a North Carolina corporation (the “Company”), confirms its agreement
with Banc of America Securities LLC (“BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇”), ▇.▇. ▇▇▇▇▇▇ Securities Inc.
(“JPMorgan”) and SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. (“SunTrust” and, together with BofA ▇▇▇▇▇▇▇
▇▇▇▇▇, JPMorgan and each of the other Underwriters named in Schedule A hereto, collectively, the
“Underwriters,” which term shall also include any underwriter substituted as hereinafter provided
in Section 10 hereof), for whom BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇, JPMorgan and SunTrust are acting as
representatives (in such capacity, the
“Representatives”) with respect to the issuance and sale by the Company and purchase by the
Underwriters of up to $500,000,000 aggregate amount of its 4.625% Notes due April 15, 2020 (the
“2020 Notes”) and up to $500,000,000 aggregate amount of its 5.800% Notes due April 15, 2040 (the
“2040 Notes” and, together with the 2020 Notes, the “Securities”) on the terms and conditions
stated herein and in Schedule B. The Securities are to be sold to each Underwriter, acting
severally and not jointly, in the respective principal amounts as are set forth in Schedule A
hereto opposite the name of such Underwriter. The Securities are to be issued pursuant to an
Amended and Restated Indenture dated as of December 1, 1995 as supplemented by a Sixth Supplemental
Indenture, to be dated as of April 15, 2010 (the “Indenture”), between the Company and The Bank of
New York Mellon Trust Company, N.A. as trustee (the “Trustee”). The Securities and the Indenture
are more fully described in the Prospectus referred to below.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement on Form S-3 (Registration No. 333-161697),
including the related base prospectus, which registration statement became effective upon filing
under Rule 462(e) of the rules and regulations of the Commission (the “1933 Act Regulations”) under
the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement covers, among
other securities, the registration of the Securities under the 1933 Act. Promptly after execution
and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with
the provisions of Rule 430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any information included in such prospectus that was
omitted from such registration statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to Rule 430B is referred to as “Rule
430B Information.” The prospectus dated September 2, 2009 (the “Base Prospectus”) together with
the preliminary prospectus supplement dated April 12, 2010 used in connection with the offering of
the Securities is herein called the “Preliminary Prospectus.” Such registration statement, at any
given time, including the amendments thereto to such time, the exhibits and any schedules thereto
at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included
therein by 1933 Act Regulations at such time, is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The Base Prospectus together with the final prospectus supplement dated
April 12, 2010 in the form first furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by reference therein pursuant to
Item 12 of the Form S-3 under the 1933 Act at the time of the execution of this Agreement is herein
called the “Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, the Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, the Preliminary
Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be part of or
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included in the Registration Statement, the Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934 (the “1934 Act”) which is
incorporated by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as you deem advisable after this Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) Representations and Warranties of the Company. The Company represents and
warrants to and agrees with each of the Underwriters as of the Applicable Time referred to in
Section 1(a) hereof and as of the Closing Time referred to in Section 2(b) hereof, that:
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations and (C) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”), including not having been and not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, and the Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement”. The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic
shelf registration statement form.
(ii) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on September 2, 2009. No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
To the extent that any offer that is a written communication relating to the Securities
was made prior to the filing of the Original Registration Statement by the Company or any
person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the 1933 Act Regulations), such communication has been filed with the Commission in
accordance with the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”)
and otherwise complied with the requirements of Rule 163, including without limitation the
legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933
Act provided by Rule 163.
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At the time the Original Registration Statement became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations and at the Closing Time, the Registration Statement complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939, as amended (the “1939 Act”) and the rules and regulations
of the Commission under the 1939 Act (the “1939 Act Regulations”), and did not 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;
Neither the Prospectus nor any amendments or supplements thereto issued prior to the
Closing Time, at the time the Prospectus or any such amendment or supplement was issued and
at the Closing Time, all considered together, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no representations or warranties
as to statements in or omissions from the Registration Statement, the Prospectus, or an
Issuer Free Writing Prospectus made in or on behalf of or relating to any Underwriter,
directly or through you, expressly for use in the Registration Statement or the Prospectus.
The Preliminary Prospectus and the Prospectus complied when so filed in all material
respects with the 1933 Act Regulations and the Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
As of the Applicable Time, neither the Issuer General Use Free Writing Prospectus (as
defined below) issued at or prior to the Applicable Time (as defined below), nor the
Preliminary Prospectus, all considered together (collectively, the “General Disclosure
Package”) included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 4:00 p.m. (Eastern time) on April 12, 2010 or such other time
as agreed by the Company and the Underwriters.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that is
required to be filed with the Commission by the Company.
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule B hereto.
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“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date did not include any
information that conflicted with the information contained in the Registration Statement or
the Prospectus as of such date, including any document incorporated by reference therein and
any preliminary or other prospectus deemed to be a part thereof that has not been superseded
or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein.
(iii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus on or prior to
the Closing Date, at the time they were filed with the Commission, complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations
or the 1934 Act, and the rules and regulations of the Commission thereunder (the “1934 Act
Regulations”), as applicable, and, when read together and with the other information in the
Prospectus, (a) at the time the Original Registration Statement became effective, (b) at the
earlier of the time the Prospectus was first used and the time of the first contract of sale
of Securities in this offering, which is the Applicable Time and (c) at the Closing Time,
did not 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 in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(iv) Independent Accountants. Deloitte & Touche LLP, who have reported upon
the audited financial statements, the notes related thereto and schedules included or
incorporated by reference in the Registration Statement, are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(v) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(vi) Financial Statements. The consolidated financial statements included in
or incorporated by reference into the Registration Statement, the General Disclosure Package
and the Prospectus, together with the related schedules and notes, present fairly the
consolidated financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and the consolidated cash flows of the
Company and its subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved. The financial
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statement schedules, if any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The selected financial
data and the summary financial information included or incorporated by reference in the
General Disclosure Package and the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration Statement.
(vii) Good Standing of the Company. The Company is a corporation duly
organized and validly existing under the laws of the State of North Carolina with corporate
power and authority under such laws to own, lease and operate its properties and conduct its
business as described in the General Disclosure Package and the Prospectus; and the Company
is duly qualified to transact business as a foreign corporation and is in good standing or
validly existing, as applicable, in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(viii) Good Standing of Subsidiaries. Each of ▇▇▇▇’▇ Home Centers, Inc., a
North Carolina corporation, and ▇▇▇▇’▇ HIW, Inc., a Washington corporation (together, the
“Significant Subsidiaries” as such term is defined in Rule 1-02 under Regulation S-X), is a
corporation duly organized, validly existing or in good standing, as applicable, under the
laws of the jurisdiction of its incorporation with corporate power and authority under such
laws to own, lease and operate its properties and conduct its business; and each Significant
Subsidiary is duly qualified to transact business as a foreign corporation and is validly
existing or in good standing, as applicable, in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and non-assessable and are
owned by the Company, directly or through one or more Significant Subsidiaries, free and
clear of any pledge, lien, security interest, charge, claim or encumbrance of any kind.
(ix) Authorization of Indenture. The Indenture and any supplement thereto or
board resolution or action of authorized officers of the Company setting forth the terms of
the Securities (the Indenture, as so supplemented by the supplement, board resolutions or
action of authorized officers being herein referred to as the “Indenture”) has been duly
authorized by the Company, will be substantially in the form heretofore delivered to you
and, when duly executed and delivered by the Company and the Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity
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(regardless of whether enforcement is considered in a proceeding in equity or at law);
and the Indenture conforms in all material respects to the description thereof in the
General Disclosure Package and the Prospectus.
(x) Authorization of Securities. The Securities have been duly authorized by
the Company. When executed, authenticated, issued and delivered in the manner provided for
in the Indenture and sold and paid for as provided in this Agreement, the Securities will
constitute valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law); and the Securities conform in all material respects to
the description thereof in the General Disclosure Package and the Prospectus.
(xi) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package and
the Prospectus, except as otherwise stated therein or contemplated thereby, there has not
been (A) any material adverse change in the financial condition, earnings or business
affairs of the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (B) any transaction entered into by the Company
or any subsidiary, other than in the ordinary course of business, that is material to the
Company and its subsidiaries, considered as one enterprise, or (C) any dividend (other than
ordinary quarterly dividends declared, paid or made in the ordinary course of business) or
distribution of any kind declared, paid or made by the Company on its capital stock.
(xii) Absence of Defaults and Conflicts. Neither the Company nor any
Significant Subsidiary is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a party or by which
it may be bound or to which any of its properties may be subject, except for such defaults
that would not have a material adverse effect on the financial condition, earnings or
business affairs of the Company and its subsidiaries, considered as one enterprise. The
execution and delivery of this Agreement and the Indenture by the Company, the issuance and
delivery of the Securities, the consummation by the Company of the transactions contemplated
in this Agreement, in the Prospectus and in the Registration Statement and compliance by the
Company with the terms of this Agreement and the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company and do not and will not result in any
violation of the charter or by-laws of the Company or any Significant Subsidiary, and do not
and will not conflict with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Significant Subsidiary under
(A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or
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any Significant Subsidiary is a party or by which it may be bound or to which any of
its properties may be subject or (B) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Significant Subsidiary or any of
their respective properties (except for, in each case, such violations, conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a material adverse effect
on the financial condition, earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise and that would not have a material adverse effect
on the ability of the Company to perform its obligations under this Agreement, the Indenture
and the Securities).
(xiii) Absence of Further Requirements. No filing with, or authorization,
approval, consent or license of any government, governmental instrumentality or court,
(other than under those required and obtained under the 1933 Act, the 1939 Act and the
securities or blue sky laws of the various states), is necessary or required for the
performance by the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, for the valid authorization, issuance, sale and delivery of
the Securities, or for the execution, delivery or performance of the Indenture by the
Company.
(xiv) Absence of Proceedings. Except as disclosed in the General Disclosure
Package and the Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Company, threatened against or affecting the Company or any subsidiary
of the Company that could result in any material adverse change in the financial condition,
earnings or business affairs of the Company and its subsidiaries, considered as one
enterprise, or that could materially and adversely affect the properties or assets of the
Company and its subsidiaries, considered as one enterprise, or that could adversely affect
the consummation of the transactions contemplated in this Agreement; the aggregate of all
pending legal or governmental proceedings that are not described in the General Disclosure
Package and the Prospectus to which the Company or any subsidiary of the Company is a party
or which affect any of their respective properties, including ordinary routine litigation
incidental to the business of the Company or any subsidiary of the Company, would not have a
material adverse effect on the financial condition, earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise.
(xv) Accuracy of Exhibits. There are no contracts or documents of a character
required to be described in the Registration Statement, the General Disclosure Package or
the Prospectus or to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(xvi) Possession of Licenses and Permits. The Company and the Significant
Subsidiaries each owns, possesses or has obtained all material governmental licenses,
permits, certificates, consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to carry on its business
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as presently conducted (other than such licenses, permits, certificates, consents,
orders, approvals and authorizations which, if neither owned, possessed nor obtained, would
not have a material adverse effect on the business of the Company and its subsidiaries,
considered as one enterprise), and neither the Company nor any Significant Subsidiary has
received any notice of proceedings relating to revocation or modification of any such
material licenses, permits, certificates, consents, orders, approvals or authorizations.
(xvii) Possession of Intellectual Property. The Company and the Significant
Subsidiaries each owns or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary to carry on its
business as presently conducted, and neither the Company nor any Significant Subsidiary has
received any notice of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or trade names that in
the aggregate, if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the financial condition, earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise.
(xviii) Absence of Labor Dispute. To the best knowledge of the Company, no
material labor problem exists with its employees or with employees of the Significant
Subsidiaries or is imminent and there is no existing or imminent labor disturbance by the
employees of any of its or the Significant Subsidiaries’ principal suppliers, contractors or
customers, in each case, that could be expected to materially adversely affect the financial
condition, earnings or business affairs of the Company and its subsidiaries, considered as
one enterprise.
(xix) Market Stabilization. The Company has not taken and, so long as a
prospectus is required to be delivered by any Underwriter or dealer, will not take, directly
or indirectly, any action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Securities.
(xx) Environmental Laws. Except as disclosed in the Prospectus and except as
would not individually or in the aggregate have a material adverse effect on the financial
condition, earnings or business affairs of the Company and its subsidiaries, considered as
one enterprise, (A) the Company and its subsidiaries are each in compliance with all
applicable Environmental Laws, (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or threatened Environmental
Claims against the Company or any of its subsidiaries, and (D) there are no circumstances
with respect to any property or operations of the Company or its subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim against the Company or
its subsidiaries.
For purposes of this Agreement, the following terms shall have the following meanings:
“Environmental Law” means any United States (or other applicable jurisdiction’s) federal,
state, local or municipal statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof including any judicial
or administrative order, consent decree or judgment,
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relating to the environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental authority.
“Environmental Claims” means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
(xxi) Accounting Controls and Disclosure Controls. The Company maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management’s general or specific authorization;
(2) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (3) access to assets is
permitted only in accordance with management’s general or specific authorization; and (4)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xxii) Sarbanes Oxley. The Company is in compliance, in all material respects,
with the applicable provisions of the Sarbanes Oxley Act of 2002.
(xxiii) No Unlawful Contributions or Other Payments. None of the Company, any
of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries has taken any action,
directly or indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA, and the Company, its subsidiaries
and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith. “FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder.
(xxiv) No Conflict with Money Laundering Laws. The operations of the Company
and its subsidiaries are and have been conducted at all times in compliance in all material
respects 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 applicable jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency in such jurisdictions (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body
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.
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(xxv) No Conflict with OFAC Laws. 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 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 from
the issuance and sale of the Securities, 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.
(b) Officer’s Certificate. Any certificate signed by any officer of the Company or
any of its subsidiaries and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters covered thereby.
(c) Representations of the Underwriters.
(i) European Economic Area. In relation to each Member State of the European
Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member
State”), each Underwriter represents and agrees, severally and not jointly, that with effect
from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make
an offer of Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Securities to the public in that Relevant
Member State at any time:
(A) to legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(B) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€443,000,000 and (3) an annual net turnover of more than €450,000,000, as shown in its last
annual or consolidated accounts;
(C) to fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior consent of the
representatives for any such offer; or
(D) in any other circumstances which do not require the publication by the Company of a
prospectus pursuant to Article 3 of the Prospectus Directive.
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For the purposes of this provision, the expression an “offer of Securities to the
public” in relation to any Securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the terms of the offer and the
Securities to be offered so as to enable an investor to decide to purchase or subscribe the
Securities, as the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member
State.
(ii) United Kingdom. Each Underwriter represents and agrees, severally and not
jointly, that:
(A) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the
“FSMA”)) received by it in connection with the issue or sale of the Securities in
circumstances in which Section 21(1) of the FSMA would not, if the Company was not an
authorized person, apply to the Company; and
(B) it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Securities in, from or otherwise involving
the United Kingdom.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company,
at the purchase price to the Underwriters set forth in Schedule B, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule A, plus any additional
principal amount of Securities that such Underwriter may become obligated to purchase pursuant to
Section 10 of this Agreement.
(b) Payment. Payment of the purchase price for, and delivery of, the Securities shall
be made at the offices of Shearman & Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Company and you, at 10:00 A.M. on the third
full business day after the date of this Agreement (unless postponed pursuant to Section 10), or at
such other time not more than ten full business days thereafter as you and the Company shall
determine (such date and time of payment and delivery being herein called the “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to an account
designated by the Company, against delivery to you for the respective accounts of the several
Underwriters of the Securities to be purchased by them.
(c) Denominations; Registration. The Securities to be purchased by the Underwriters
shall be in such denominations and registered in such names as you may request in writing at least
two full business days before the Closing Time. The Securities will be made
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available in New York City for examination and packaging by you not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. During the period in which a prospectus relating to the Securities is required to be
delivered by an Underwriter or would be required but for Rule 172 under the 1933 Act, the Company,
subject to Section 3(b), will comply with the requirements of Rule 430B and will notify the
Representatives immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement or new registration statement relating to the Securities
shall become effective, or any supplement to the Prospectus or any amended Prospectus relating to
the Securities shall have been filed, (ii) of the receipt of any comments from the Commission
relating to the Registration Statement or the Prospectus, (iii) of any request by the Commission
for any amendment to the Registration Statement or the filing of a new registration statement or
any amendment or supplement to the Prospectus or any document incorporated by reference therein or
otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or such new
registration statement or of any order preventing or suspending the use of the Preliminary
Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or, upon becoming aware, of the initiation or threatening of any proceedings for any
of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes aware that it is the subject of a proceeding
under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company
will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b), and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company
shall pay the required Commission filing fees relating to the Securities within the time required
by Rule 456(b)(1) (i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and
457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of
Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment
to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents; Preparation of Final Term Sheet.
During the period in which a prospectus relating to the Securities is required to be delivered by
an Underwriter or would be required but for Rule 172 under the 1933 Act, the Company will give the
Representatives notice of its intention to file or prepare any amendment to the Registration
Statement or new registration statement relating to the Securities or any amendment, supplement or
revision to either the Preliminary Prospectus or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which
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the Representatives or counsel for the Underwriters shall reasonably object. The Company has
given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act
Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives
notice of its intention to make any such filing from the Applicable Time to the Closing Time and
will furnish the Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object. The Company will prepare
a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in form
and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet
as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two
business days after the date hereof; provided that the Company shall furnish the Representatives
with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing
and will not use or file any such document to which the Representatives or counsel to the
Underwriters shall reasonably object.
(c) Continued Compliance with Securities Laws. The Company will comply to the best of
its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the
Securities by any Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company,
to amend the Registration Statement or amend or supplement the General Disclosure Package or the
Prospectus in order that the General Disclosure Package and the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or to file a new registration statement or amend
or supplement the General Disclosure Package or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment, supplement or new registration
statement as may be necessary to correct such untrue statement or omission or to comply with such
requirements. The Company will use its best efforts to have such amendment or new registration
statement declared effective as soon as practicable (if it is not an automatic shelf registration
statement with respect to the Securities) and the Company will furnish to the Underwriters such
number of copies of such amendment, supplement or new registration statement as the Underwriters
may reasonably request. During the period in which a prospectus relating to the Securities is
required to be delivered by an Underwriter or would be required but for Rule 172 under the 1933
Act, if at any time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information contained or incorporated by reference in the Registration
Statement (or any other registration statement relating to the Securities) or the Statutory
Prospectus included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement, at its own expense, such
14
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(d) Delivery of the Registration Statement. The Company has furnished or will furnish
to you, without charge, as many signed copies of the Original Registration Statement and of all
amendments thereto, copies of all exhibits and documents filed therewith or incorporated by
reference therein or otherwise deemed to be a part thereof (other than documents required to be
filed under the 1934 Act that upon filing are deemed to be incorporated by reference therein and
through the end of the period when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities) and signed copies of all consents and certificates of
experts, as you may reasonably request, and has furnished or will furnish to you, for each of the
Underwriters, one conformed copy of the Original Registration Statement and of each amendment
thereto (including documents incorporated by reference into the Prospectus but without exhibits,
other than documents required to be filed under the 1934 Act that upon filing are deemed to be
incorporated by reference therein). The copies of the Original Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Delivery of Prospectuses. The Company has delivered to each Underwriter, without
charge, an electronic copy of the Preliminary Prospectus, and the Company hereby consents to the
distribution of such Preliminary Prospectus to prospective investors. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus is required to be delivered
under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate and will maintain such
qualifications in effect for a period of not less than one year from the date hereof;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above to continue such qualification in effect for a period of
not less than one year from the date hereof. The Company will also supply you with such
information as is necessary for the determination of the legality of the Securities for investment
under the laws of such jurisdictions as you may request.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its security holders as soon as practicable
an earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
15
(h) Rating of Securities. The Company shall take all reasonable action necessary to
enable ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”), Standard & Poor’s Ratings Services, a Division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and Fitch, Inc. (“Fitch”) to provide their respective
credit ratings of the Securities issued by the Company.
(i) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the caption “Use of
Proceeds.”
(j) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless
it obtains the prior consent of the Representatives, and each Underwriter represents and agrees
that, unless it obtains 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 an “issuer free
writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however,
that prior to the preparation of the Final Term Sheet in accordance with Section 3(b), the
Underwriters are authorized to use information with respect to the final terms of the Securities in
communications conveying information relating to the offering to prospective investors. Any such
free writing prospectus consented to by the Company and the Representatives is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
Section 4. Payment of Expenses.
(a) Expenses. The Company will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and any schedules or exhibits
and any documents incorporated therein by reference), as originally filed and as amended, the
General Disclosure Package and the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof in accordance with Section 3 of this Agreement thereto to the
Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture, the
Securities, the Blue Sky Survey and the Legal Investment Survey, (iii) the delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel and
accountants, (v) the qualification of the Securities under the applicable securities laws in
accordance with Section 3(f) and any filing for review of the offering with the Financial Industry
Regulatory Authority, including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey and the Legal
Investment Survey, (vi) any fees charged by rating agencies for rating the Securities and (vii) the
fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee,
in connection with the Indenture and the Securities.
(b) Termination of Agreement. If this Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(a)(i) the Company shall reimburse the
16
Underwriters for all their out-of-pocket expenses, including the fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters to purchase and pay for the Securities that they have respectively agreed to purchase
pursuant to this Agreement are subject to the accuracy of the representations and warranties of the
Company contained herein or in certificates of any officer of the Company or any Significant
Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing
Fee. The Registration Statement has become effective and at the Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the 1933
Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your
knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request
on the part of the Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. A prospectus containing the Rule 430B Information
shall have been filed with the Commission in the manner and within the time period required by Rule
424(b)(or a post-effective amendment providing such information shall have been filed and become
effective in accordance with the requirements of Rule 430B). The Company shall have paid the
required Commission filling fees relating to the Securities within the time period required by Rule
456(1)(i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) or
the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration
Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinions of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, Counsel for the Company. At the Closing Time,
you shall have received signed opinions of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, counsel for the Company, dated
as of the Closing Time, together with signed or reproduced copies of such opinions for each of the
other Underwriters, in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company is a corporation duly incorporated and validly existing under the laws
of the State of North Carolina, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described in the Prospectus.
(ii) Each Significant Subsidiary is a corporation duly incorporated, validly existing
or in good standing, as applicable, under the laws of the jurisdiction of its incorporation
with corporate power and authority under such laws to own, lease and operate its properties
and conduct its business.
(iii) All of the outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and non-assessable; all of
such shares are owned directly by the Company, free and clear of any perfected security
interest and, any unperfected pledge, lien, security interest, charge,
17
claim, equity or encumbrance of any kind known to such counsel; no holder thereof is
subject to personal liability by reason of being such a holder and none of such shares was
issued in violation of the preemptive rights of any stockholder of the Significant
Subsidiaries.
(iv) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and except to the extent that
enforcement thereof is contrary to public policy regarding the exculpation of criminal
violations, intentional harm, acts of gross negligence or recklessness or violations of
securities laws and regulations.
(v) The Securities have been duly authorized by the Company and, assuming that the
Securities have been duly authenticated by the Trustee in the manner described in its
certificate delivered to you at the Closing Time (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed, issued and
delivered by the Company and constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and except to the extent that
enforcement thereof is contrary to public policy regarding the exculpation of criminal
violations, intentional harm, acts of gross negligence or recklessness or violations of
securities laws and regulations.
(vi) There are no statutes or regulations, or any pending or threatened legal or
governmental proceedings known to such counsel that are required to be described in the
General Disclosure Package or the Prospectus that are not described as required, or of any
material contracts or documents of a character required to be described or referred to in
the Registration Statement, the General Disclosure Package or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described, referred to or filed as
required.
(vii) No default, known to such counsel, exists in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract, indenture,
loan agreement, note, lease or other agreement or instrument that is described or referred
to in the Registration Statement, the Prospectus or the General Disclosure Package or filed
as an exhibit to the Registration Statement.
18
(viii) The execution and delivery of this Agreement and the Indenture by the Company,
the issuance and delivery of the Securities, the consummation by the Company of the
transactions contemplated in this Agreement, in the Indenture, in the General Disclosure
Package, in the Prospectus and in the Registration Statement, and the compliance by the
Company with the terms of this Agreement and the Indenture do not and will not result in any
violation of the charter or by-laws of the Company or any Significant Subsidiary, and do not
and will not conflict with, or result in a breach of, any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Significant Subsidiary under
(A) any contract, indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to such counsel, to which the Company or any Significant Subsidiary is a
party or by which it may be bound or to which any of its properties may be subject, (B) any
existing applicable law, rule or regulation (other than the securities or blue sky laws of
the various states, as to which such counsel need express no opinion), or (C) any judgment,
order or decree of any government, governmental instrumentality or court, known to such
counsel, having jurisdiction over the Company or any Significant Subsidiary or any of their
respective properties, in each case excepting such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on the business,
operations, property or financial condition of the Company and its subsidiaries, considered
as one enterprise and that would not have a material adverse effect on the ability of the
Company to perform its obligations under the Agreement, the Indenture or the Securities.
(ix) The descriptions in the Prospectus of the statutes, regulations, legal or
governmental proceedings, contracts or other documents therein described are accurate and
fairly summarize the information required to be shown in all material respects.
(x) This Agreement has been duly authorized, executed and delivered by the Company.
(xi) The Indenture has been duly qualified under the 1939 Act.
(xii) The Securities and the Indenture conform in all material respects as to legal
matters to the descriptions thereof in the General Disclosure Package and the Prospectus.
(xiii) No authorization, approval, consent or license of any government, governmental
instrumentality or court (other than those required and obtained under the 1933 Act, the
1939 Act and the securities or blue sky laws of the various states), is required for the
valid authorization, issuance, sale and delivery of the Securities or for the execution,
delivery or performance of the Indenture by the Company.
(xiv) The Original Registration Statement became effective under the 1933 Act on
September 2, 2009; the required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, no stop order
suspending the effectiveness of the Registration Statement, known to such
19
counsel, has been issued and no proceedings for that purpose, known to such counsel,
have been instituted or are pending or are contemplated under the 1933 Act.
(xv) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement thereto (except for the
financial statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), as of their respective
effective or issue dates, appear on their face to have been appropriately responsive in all
material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the
Indenture on its face to have been appropriately responsive in all material respects to the
requirements of the 1939 Act and the 1939 Act Regulations.
(xvi) The documents incorporated by reference in the General Disclosure Package and the
Prospectus (except for the financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need express no opinion, and
except to the extent that any statement therein is modified or superseded in the General
Disclosure Package and the Prospectus), as of the dates they were filed with the Commission,
appear on their face to have been appropriately responsive in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations.
(xvii) Such counsel have participated in the preparation of the Registration Statement,
the General Disclosure Package and the Prospectus and are familiar with or have participated
in the preparation of the documents incorporated by reference in the General Disclosure
Package and the Prospectus and no facts have come to the attention of such counsel to lead
them to believe that (A) the Registration Statement (except for the financial statements and
other financial information and statistical data included or incorporated by reference
therein or omitted therefrom and the Statement of Eligibility of the Trustee on Form T-1
filed in connection with such Registration Statement, as to which such counsel need express
no opinion), at the time the Original Registration Statement became effective, at each
deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the
1933 Act Regulations prior to or at the Closing Time, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B)(i) the Prospectus or any
amendment or supplement thereto (except for the financial statements and other financial
information and statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), as of the date of the
Prospectus and as of the Closing Time or (ii) the General Disclosure Package, as of the
Applicable Time, included or include an untrue statement of a material fact or omitted or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (C) the documents
incorporated by reference in the General Disclosure Package and the Prospectus (except for
the financial statements and other financial information and statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion, and except
to the extent that any statement therein is modified or superseded in the General Disclosure
Package and the Prospectus), as of the dates they were filed with the Commission, included
an untrue statement of a
20
material fact or omitted 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.
Such opinion shall be to such further effect with respect to other legal matters relating to
this Agreement and the sale of the Securities pursuant to this Agreement as counsel for the
Underwriters may reasonably request. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the States of New
York and North Carolina and the federal law of the United States, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the Underwriters, in which case
the opinion shall state that they believe you and they are entitled to so rely. Such
counsel may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the Company and the
Significant Subsidiaries and certificates of public officials.
(c) Opinion of Counsel to the Underwriters. At the Closing Time, you shall
have received the favorable opinion of ▇▇▇▇▇▇▇▇ & Sterling LLP, counsel for the
Underwriters, dated as of the Closing Time, together with signed or reproduced copies of
such opinion for each of the other Underwriters, to the effect that the opinion delivered
pursuant to Sections 5(b) hereof appear on its face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to the extent waived by you, and
with respect to the incorporation and legal existence of the Company, the Securities, this
Agreement, the Indenture, the Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters as you may require. In giving such
opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Significant Subsidiaries and certificates of
public officials; provided that such certificates have been delivered to the
Underwriters.
(d) Officers’ Certificate. At the Closing Time, (i) the Registration
Statement, the General Disclosure Package and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated therein under the
1933 Act and the 1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations, and neither the Registration Statement, the General Disclosure Package nor the
Prospectus, as they may then be amended or supplemented, shall 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, (ii) since the time of execution of
this Agreement or since the respective dates as of which information is given in the
Prospectus or the General Disclosure Package, there shall not have been any material adverse
change in the financial condition, earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of
business, (iii) no action, suit or proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any subsidiary of the
21
Company that would be required to be set forth in the General Disclosure Package and
the Prospectus other than as set forth therein and no proceedings shall be pending or, to
the knowledge of the Company, threatened against the Company or any subsidiary of the
Company before or by any government, governmental instrumentality or court, domestic or
foreign, that could result in any material adverse change in the financial condition,
earnings or business affairs of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the General Disclosure Package and the Prospectus,
(iv) the Company shall have complied with all agreements and satisfied all conditions on its
part to be performed or satisfied relating to the transactions contemplated by this
Agreement, the Indenture, the Registration Statement, the General Disclosure Package and the
Prospectus at or prior to the Closing Time and (v) the other representations and warranties
of the Company set forth in Section 1(a) shall be accurate as though expressly made at and
as of the Closing Time. At the Closing Time, you shall have received a certificate of the
Chief Executive Officer or an Executive Vice President, and the Treasurer or Assistant
Treasurer or Controller, of the Company, dated as of the Closing Time, to such effect.
(e) Accountants’ Comfort Letter. At the date of this Agreement, you shall
receive from Deloitte & Touche LLP a letter, dated as of the date of this Agreement, in form
and substance satisfactory to you, together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus and the specified
date referred to therein shall be a date not more than three days prior to the date of this
Agreement.
(f) Bring-down Comfort Letter. At the Closing Time, you shall have received
from Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more than two
business days prior to the Closing Time.
(g) Rating Agencies. Subsequent to the execution and delivery of this
Agreement and prior to the Closing Time, there shall not have been any downgrading, nor any
notice given of any intended or potential downgrading or of a possible change that does not
indicate the direction of the possible change, in the rating accorded any of the Company’s
securities, including the Securities, by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(h) Additional Documents. At the Closing Time, counsel for the Underwriters
shall have been furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance and sale of
the Securities as contemplated in this Agreement and the matters referred to in Section 5(c)
and in order to evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the
22
covenants of the Company, or the fulfillment of any of the conditions herein contained;
and all proceedings taken by the Company at or prior to the Closing Time in connection with
the authorization, issuance and sale of the Securities as contemplated in this Agreement
shall be satisfactory in form and substance to you and to counsel for the Underwriters.
(i) Termination of Agreement. If any of the conditions specified in this
Section 5 shall not have been fulfilled when and as required by this Agreement, this
Agreement may be terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to any other
party, except as provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, including the Rule 430B Information, or the
omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, provided that (subject to Section 6(d) hereof) any
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue statement or omission or
alleged untrue
23
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by and relating to any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430B Information, the
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of the Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity agreement contained in Section 6(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (including any amendment thereto),
including the Rule 430B Information, any Issuer Free Writing Prospectus, the Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by and relating to such Underwriter through you
expressly for use therein.
(c) Actions Against Parties; Notification. Each indemnified party shall give notice
as promptly as reasonably practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) hereof, counsel to the indemnified parties shall be
selected by the Representatives and, in the case of parties indemnified pursuant to Section 6(b)
hereof, counsel to the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party
24
for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. The indemnified party shall promptly reimburse the
indemnifying party for all amounts advanced to it pursuant to this Section 6(d) hereof (unless it
is entitled to such amounts under Section 7 hereof) if it shall be finally judicially determined
that such indemnified party was not entitled to indemnification hereunder and such loss, liability,
claim, damage or expense arose out of (i) an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by and relating to the indemnified party expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430B Information or any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or (ii) a fraudulent misrepresentation (within the meaning of Section 11 of the 1933 Act)
by the indemnified party.
SECTION 7. Contribution
If the indemnification provided for in Section 6 hereof is for any reason held to be
unavailable or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on such cover.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
25
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of Securities set forth
opposite their respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties, indemnities, agreements and other statements of the Company or its
officers set forth in or made pursuant to this Agreement will remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Company, any Underwriter or
any person who controls the Company or any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act and will survive delivery of and payment for the Securities.
Section 9. Termination of Agreement.
(a) Termination Generally. You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which information is given in the
Prospectus or the General Disclosure Package, any material adverse change in the financial
condition, earnings or business affairs of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or
26
any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect is such as to make it, in your
judgment, impracticable to market the Securities or enforce contracts for the sale of the
Securities or (iii) if trading in any securities of the Company has been suspended by the
Commission or the Financial Industry Regulatory Authority or if trading generally on either the
American Stock Exchange or the New York Stock Exchange or in the over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by any of such exchanges or such system or by order of the
Commission, the Financial Industry Regulatory Authority or any other governmental authority, (iv) a
material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States or (v) if a banking moratorium has been declared by either federal,
New York or North Carolina authorities. As used in this Section 9(a), the term “Prospectus” means
the Prospectus in the form first used to confirm sales of the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except to the extent
provided in Section 4. Notwithstanding any such termination, the provisions of Sections 6, 7 and 8
shall survive such termination and remain in full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities that it or they are
obligated to purchase pursuant to this Agreement (the “Defaulted Securities”), you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms set forth in this Agreement;
if, however, the non-defaulting Underwriters have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased pursuant to this Agreement,
each non-defaulting Underwriter shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective Securities
underwriting obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased pursuant to this Agreement,
this Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default that does not result in a termination of this Agreement,
either the non-defaulting Underwriters or the Company shall have the right to postpone the Closing
Time for a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
27
As used herein, the term “Underwriter” includes any person substituted for a Underwriter under
this Section 10.
Section 11. Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if delivered, mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters and the Company shall be
directed to the addresses specified below.
To the Company:
▇▇▇▇’▇ Companies, Inc.
▇▇▇▇ ▇▇▇▇’▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: NB3TR
Attention: Treasurer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇’▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: NB3TR
Attention: Treasurer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇’▇ Companies, Inc.
▇▇▇▇ ▇▇▇▇’▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: NB7LG
Attention: Office of the General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇’▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: NB7LG
Attention: Office of the General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Underwriters:
c/o:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-100-18-03
New York, New York 10036
Attention: High Grade Transaction Management/Legal
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-100-18-03
New York, New York 10036
Attention: High Grade Transaction Management/Legal
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: High Grade Syndicate Desk — 3rd Floor
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: High Grade Syndicate Desk — 3rd Floor
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
28
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Grade Debt Capital Markets
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Grade Debt Capital Markets
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 12. Parties. This Agreement herein set forth is made solely for the benefit
of the several Underwriters, the Company and, to the extent expressed, any person who controls the
Company or any of the Underwriters within the meaning of Section 15 of the 1933 Act, and the
directors of the Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to the provisions of
Section 10, no other person shall acquire or have any right under or by virtue of this Agreement.
The term “successors and assigns” shall not include any purchaser, as such purchaser, from any of
the several Underwriters of the Securities. All of the obligations of the Underwriters hereunder
are several and not joint.
Section 13. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company, and (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
Section 14. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
Section 15. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with the transactions contemplated by this Agreement, and any
action under or in respect of this Agreement taken by the Representatives will be binding upon all
Underwriters.
Section 17. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. Unless otherwise indicated,
specified times of the day refer to New York City time.
29
Section 18. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
Section 19. Counterparts. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Company and the several Underwriters in accordance with its
terms.
| Very truly yours, LOWE’S COMPANIES, INC. |
||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇▇▇▇▇ | |||
| Title: | Vice President and Treasurer | |||
CONFIRMED AND ACCEPTED
as of the date first above written:
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
| By: Banc of America Securities LLC | ||||
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Title: Vice President | ||||
| By: ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||||
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| Title: Vice President | ||||
| By: SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. | ||||
By:
|
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||
| Title: Director | ||||
SCHEDULE A
| Underwriter | Principal amount of 2020 Notes | |||
Banc of America Securities LLC |
$ | 110,000,000 | ||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
$ | 110,000,000 | ||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
$ | 110,000,000 | ||
▇▇▇▇▇ Fargo Securities, LLC |
$ | 40,000,000 | ||
U.S. Bancorp Investments, LLC |
$ | 40,000,000 | ||
Barclays Capital Inc. |
$ | 7,500,000 | ||
BB&T Capital Market, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, LLC |
$ | 7,500,000 | ||
BMO Capital Markets Corp. |
$ | 7,500,000 | ||
BNP Paribas Securities Corp. |
$ | 7,500,000 | ||
BNY Mellon Capital Markets, LLC |
$ | 7,500,000 | ||
Fifth Third Securities, Inc. |
$ | 7,500,000 | ||
HSBC Securities (USA) Inc. |
$ | 7,500,000 | ||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 7,500,000 | ||
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. |
$ | 7,500,000 | ||
PNC Capital Markets LLC |
$ | 7,500,000 | ||
Loop Capital Markets, LLC |
$ | 5,000,000 | ||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, Inc. |
$ | 5,000,000 | ||
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. |
$ | 5,000,000 | ||
Total |
$ | 500,000,000 | ||
| Underwriter | Principal amount of 2040 Notes | |||
Banc of America Securities LLC |
$ | 110,000,000 | ||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
$ | 110,000,000 | ||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
$ | 110,000,000 | ||
▇▇▇▇▇ Fargo Securities, LLC |
$ | 40,000,000 | ||
U.S. Bancorp Investments, LLC |
$ | 40,000,000 | ||
Barclays Capital Inc. |
$ | 7,500,000 | ||
BB&T Capital Market, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, LLC |
$ | 7,500,000 | ||
BMO Capital Markets Corp. |
$ | 7,500,000 | ||
BNP Paribas Securities Corp. |
$ | 7,500,000 | ||
BNY Mellon Capital Markets, LLC |
$ | 7,500,000 | ||
Fifth Third Securities, Inc. |
$ | 7,500,000 | ||
HSBC Securities (USA) Inc. |
$ | 7,500,000 | ||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 7,500,000 | ||
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. |
$ | 7,500,000 | ||
PNC Capital Markets LLC |
$ | 7,500,000 | ||
Loop Capital Markets, LLC |
$ | 5,000,000 | ||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, Inc. |
$ | 5,000,000 | ||
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. |
$ | 5,000,000 | ||
Total |
$ | 500,000,000 | ||
SCHEDULE B
Filed Pursuant to Rule 433
Issuer Free Writing Prospectus dated April 12, 2010
Relating to Preliminary Prospectus Supplement dated April 12, 2010
Registration Statement No. 333-161697
Issuer Free Writing Prospectus dated April 12, 2010
Relating to Preliminary Prospectus Supplement dated April 12, 2010
Registration Statement No. 333-161697
Final Term Sheet
Dated April 12, 2010
Dated April 12, 2010
4.625% Notes Due 2020 |
||
Issuer: |
Lowe’s Companies, Inc. | |
Aggregate Principal Amount
Offered: |
$500,000,000 | |
Maturity Date: |
April 15, 2020 | |
Coupon (Interest Rate): |
4.625% per annum | |
Price to Public (Issue Price): |
99.818% of principal amount, plus accrued interest from the expected settlement date | |
Yield to Maturity: |
4.648% | |
Net Proceeds: |
$496,840,000 (before transaction expenses) | |
Benchmark Treasury: |
UST 3.625% due February 15, 2020 | |
Benchmark Treasury
Price and Yield: |
98-06; 3.848% | |
Spread to Benchmark
Treasury: |
0.80% (80 basis points) | |
Make Whole Call: |
T+ 15 basis points (before six months prior to the maturity date) | |
Par Call: |
Within six months prior to the maturity date | |
Trade Date: |
April 12, 2010 | |
Settlement Date (T+3): |
April 15, 2010 |
Underwriters: |
Banc of America Securities LLC | |
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||
| SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. | ||
Co-Managers: |
▇▇▇▇▇ Fargo Securities, LLC | |
| U.S. Bancorp Investments, Inc. | ||
| Barclays Capital Inc. | ||
| BB&T Capital Market, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, LLC | ||
| BMO Capital Markets Corp. | ||
| BNP Paribas Securities Corp. | ||
| BNY Mellon Capital Markets, LLC | ||
| Fifth Third Securities, Inc. | ||
| HSBC Securities (USA) Inc. | ||
| Mitsubishi UFJ Securities (USA), Inc. | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. | ||
| PNC Capital Markets LLC | ||
| Loop Capital Markets, LLC | ||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, Inc. | ||
| The ▇▇▇▇▇▇▇▇ Capital Group, L.P. | ||
Long-term debt ratings: |
▇▇▇▇▇’▇, A1 (Stable); S&P, A (Stable); Fitch, A+ (Stable) |
| Note: | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time |
2
5.800% Notes Due 2040
Issuer: |
Lowe’s Companies, Inc. | |
Aggregate Principal Amount
Offered: |
$500,000,000 | |
Maturity Date: |
April 15, 2040 | |
Coupon (Interest Rate): |
5.800% per annum | |
Price to Public (Issue Price): |
99.915% of principal amount, plus accrued interest from the expected settlement date | |
Yield to Maturity: |
5.806% | |
Net Proceeds: |
$495,200,000 (before transaction expenses) | |
Benchmark Treasury: |
UST 4.375% due November 15, 2039 | |
Benchmark Treasury
Price and Yield: |
94-23+; 4.706% | |
Spread to Benchmark
Treasury: |
1.10% (110 basis points) | |
Make Whole Call: |
T+ 20 basis points (before six months prior to the maturity date) | |
Par Call: |
Within six months prior to the maturity date | |
Trade Date: |
April 12, 2010 | |
Settlement Date (T+3): |
April 15, 2010 | |
Underwriters: |
Banc of America Securities LLC | |
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||
| SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. | ||
Co-Managers: |
▇▇▇▇▇ Fargo Securities, LLC | |
| U.S. Bancorp Investments, Inc. | ||
| Barclays Capital Inc. | ||
| BB&T Capital Market, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, LLC | ||
| BMO Capital Markets Corp. |
3
| BNP Paribas Securities Corp. | ||
| BNY Mellon Capital Markets, LLC | ||
| Fifth Third Securities, Inc. | ||
| HSBC Securities (USA) Inc. | ||
| Mitsubishi UFJ Securities (USA), Inc. | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. | ||
| PNC Capital Markets LLC | ||
| Loop Capital Markets, LLC | ||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, Inc. | ||
| The ▇▇▇▇▇▇▇▇ Capital Group, L.P. | ||
Long-term debt ratings: |
▇▇▇▇▇’▇, A1 (Stable); S&P, A (Stable); Fitch, A+ (Stable) |
| Note: | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time |
The issuer has filed a registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has filed with the SEC for
more complete information about the issuer and this offering. You may get these documents for free
by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you the prospectus if
you request it by calling Banc of America Securities LLC toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇, ▇.▇. ▇▇▇▇▇▇
Securities Inc. collect at (▇▇▇) ▇▇▇-▇▇▇▇ or SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. toll-free at
▇-▇▇▇-▇▇▇-▇▇▇▇.
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