FORM OF UNDERWRITING AGREEMENT] Thomas & Betts Corporation Debt Securities Underwriting Agreement Standard Provisions
Exhibit
1.1
[FORM OF
UNDERWRITING AGREEMENT]
▇▇▇▇▇▇ & ▇▇▇▇▇
Corporation
Debt
Securities
Underwriting Agreement
Standard Provisions
From time to time, ▇▇▇▇▇▇ & ▇▇▇▇▇
Corporation, a Tennessee corporation (the “Company”), may enter into one or more
underwriting agreements in the form of Annex A hereto that incorporate by
reference these Standard Provisions (collectively with these Standard
Provisions, an “Underwriting Agreement”) that provide for the sale of the
securities designated in such Underwriting Agreement (the “Securities”) to the
several Underwriters named therein (the “Underwriters”), for whom the
Underwriter(s) named therein shall act as representative (the “Representative”).
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this “Agreement”. The Securities will be issued
pursuant to an Indenture dated as of August 1, 1998 (the “Indenture”) between
the Company and The Bank of New York, as trustee (the “Trustee”).
1. Registration
Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form S-3 (File
No. _____), including a prospectus (the “Basic Prospectus”), relating to the
debt securities to be issued from time to time by the Company. The
Company has also filed, or proposes to file, with the Commission pursuant to
Rule 424 under the Securities Act a prospectus supplement specifically relating
to the Securities (the “Prospectus Supplement”). The registration
statement, as amended at the time it becomes effective, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Prospectus” means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities and the term
“Preliminary Prospectus” means the preliminary prospectus supplement
specifically relating to the Securities together with the Basic
Prospectus. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the
Prospectus. References herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall
be
deemed to refer to and include the documents incorporated by reference
therein. The terms “supplement,” “amendment” and “amend” as used
herein with respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed by
the Company under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (the “Exchange Act”) subsequent to
the date of the Underwriting Agreement which are deemed to be incorporated by
reference therein. For purposes of this Agreement, the term
“Effective Time” means the effective date of the Registration Statement with
respect to the offering of Securities, as determined for the Company pursuant to
Section 11 of the Securities Act and Item 512 of Regulation S-K, as
applicable.
At or prior to the time when sales of the
Securities will be first made (the “Time of Sale”), the Company will prepare
certain information (collectively, the “Time of Sale Information”) which
information will be identified in Schedule 3 to the Underwriting Agreement for
such offering of Securities as constituting part of the Time of Sale
Information.
2. Purchase of the Securities
by the Underwriters. (a) The Company agrees to
issue and sell the Securities to the several Underwriters named in the
Underwriting Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment
for and delivery of the Securities will be made at the time and place set forth
in the Underwriting Agreement. The time and date of such payment and delivery is
referred to herein as the “Closing Date”.
(c) The
Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to any offering of Securities
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, no such Underwriter is
advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and such Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
such Underwriters named in the Underwriting Agreement of the Company, the
transactions contemplated thereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
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3. Representations and
Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a)
Registration Statement and
Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related
to the offering has been initiated or threatened by the Commission; as of the
Effective Time, the Registration Statement complied in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Trust
Indenture Act”), and did not or will not contain any 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 not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus did not and will not contain any 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; provided
that the Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) any statements or omissions in the Registration Statement
and the Prospectus and any amendment or supplement thereto made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use therein.
(b)
Time of Sale Information. The
Time of Sale Information, at the Time of Sale and at the Closing Date, did not
and will not contain any untrue statement of a material fact 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; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representative expressly for use in such Time of Sale
Information. No statement of material fact included in the Prospectus
has been omitted from the Time of Sale Information and no statement of material
fact included in the Time of Sale Information that is required to be included in
the Prospectus has been omitted therefrom.
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(c)
Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and representatives (other than a communication
referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Schedule 3 to the Underwriting Agreement as constituting the Time of
Sale Information and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the
time period specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to
the first use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact 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;
provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in any Issuer Free Writing
Prospectus.
(d)
Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information, when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act 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,
in the light of the circumstances under which they were made, not
misleading.
(e)
Financial
Statements. The financial statements of the Company included
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus present fairly the financial position of the
Company as of the dates thereof and the results of operations, changes in common
stockholders' investment and cash flows of the Company, for the respective
periods covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire
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period involved; the
financial schedules included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus meet the requirements
of the 1933 Act Regulations or the 1934 Act Regulations, as applicable; and the
other financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and
presents fairly the information shown thereby.
(f)
No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, the Company has not
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions which are material to the Company, and there has not been any
material adverse change in the capital stock or short-term debt, or any material
increase in long-term debt of the Company, or any material adverse change, or
any development involving a prospective material adverse change, in the
condition (financial or other), business, net worth or results of operations of
the Company and its subsidiaries considered as one entity, except in each case
as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(g)
Organization and Good
Standing. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Tennessee, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement, the Time of Sale Information and the Prospectus, and is duly
qualified to do business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure to be so qualified, in
good standing or have such power or authority would not individually or in the
aggregate have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise or on the performance by the Company
of its obligations under the Securities (a “Material Adverse
Effect”).
(h)
Subsidiaries. Each
subsidiary of the Company which is a significant subsidiary as defined in Rule
1-02 of Regulation S-X of the Exchange Act (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Time of Sale Information and the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a Material
Adverse Effect; and
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all
of the issued and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and,
except for directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. The subsidiaries listed in Schedule 5 to this
Agreement are the only Significant Subsidiaries of the
Company.
(i)
Due
Authorization. The Company has full right, power and authority
to execute and deliver this Agreement, the Securities and the Indenture
(collectively, the “Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been
duly and validly taken.
(j)
The Indenture. The
Indenture has been duly authorized by the Company, will be substantially in the
form heretofore supplied to the Representative and each Underwriter and, when
duly executed and delivered by the Company and the other parties thereto, will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of
reasonableness and equitable principles of general applicability (collectively,
the “Enforceability Exceptions”).
(k)
The
Securities. When executed, issued, authenticated and delivered
pursuant to the provisions of the Indenture and sold and paid for as provided in
this Agreement, each thereof Securities will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms,
subject to the Enforceability Exceptions; and the Holders of such Securities
will be entitled to the benefits provided by such Indenture.
(l)
Underwriting
Agreement. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(m)
No Violation or
Default. Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of them or their properties may be
bound.
(n)
No Conflicts. The
execution and delivery of each of the Transaction Documents and the consummation
of the transactions contemplated therein will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property
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or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any such subsidiary is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or any such
subsidiary is subject, which conflict, breach or default would individually or
in the aggregate have a Material Adverse Effect, nor will such action result in
any material violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or court order
or decree currently in effect or in effect at the time of execution and delivery
of this Agreement and the Indenture and applicable to the Company or any of its
subsidiaries.
(o) No Consents
Required. No consent, approval, authorization, order or decree
of any court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by the Transaction Documents,
except such as may be required under the Securities Act, the Trust Indenture Act
or state securities or Blue Sky laws.
(p)
Legal
Proceedings. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus (as to which the
Company can express no opinion at this time concerning the Company's liability
(if any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending, or
to the best knowledge of any financial officer of the Company, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is expected to
have a material adverse effect on the financial condition of the Company or the
ability of the Company and its subsidiaries considered as one entity to perform
its obligations under the Indenture.
(q)
Independent
Accountants. KPMG LLP, who has certified certain financial
statements of the Company and its subsidiaries, and Ernst & Young LLP, who
has certified certain financial statements of ▇▇▇▇▇▇ & Sessions Co. and its
subsidiaries, are independent registered public accounting firms with respect to
the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(r)
Investment Company
Act. The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale Information and the
Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”).
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(s)
Status under the Securities
Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in
each case at the times specified in the Securities Act in connection with the
offering of the Securities.
(t)
Compliance with
Laws. The Company's business and operations comply in all
material respects with all laws and regulations applicable thereto and there are
no known, proposed or threatened changes in any laws or regulations which would
have a material adverse effect on the Company or the manner in which it conducts
its business.
(u)
Title to Real and Personal
Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise
use, all items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(v)
Title to Intellectual
Property. The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses; and the
conduct of their respective businesses will not conflict in any material respect
with any such rights of others, and the Company and its subsidiaries have not
received any notice of any claim of infringement or conflict with any such
rights of others.
(w)
Licenses and
Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Time of
Sale Information and the Prospectus, except where the failure to possess or make
the same would not, individually or in the aggregate, have a Material Adverse
Effect; and except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed in the
ordinary course.
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(x)
Compliance With Environmental
Laws. Except as described in the Registration Statement, the
Time of Sale Information and the Prospectus, (i) the Company and its
subsidiaries (x) are, and at all prior times were, in compliance with any and
all applicable federal, state, local and foreign laws rules, regulations,
requirements, decisions and orders relating to the protection of human health or
safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y)
have received and are in compliance with all permits, licenses, certificates or
other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (z) have not
received notice of any actual or potential liability under or relating to any
Environmental Laws, including for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice; (ii) there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or
its subsidiaries, except in the case of each of (i) and (ii) above, for any such
failure to comply with, or failure to receive required permits, licenses or
approvals, or cost or liability as would not, individually or in the aggregate,
have a Material Adverse Effect and (iii) (x) there are no proceedings that are
pending, or that are known to be contemplated, against the Company or any of its
subsidiaries under any Environmental Laws in which a governmental entity is also
a party, other than such proceedings regarding which it is reasonably believed
no monetary sanctions of $100,000 or more will be imposed, (y) the Company and
its subsidiaries are not aware of any issues regarding compliance with
Environmental Laws, or liabilities or other obligations under Environmental Laws
or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material effect on the
capital expenditures, earnings or competitive position of the Company and its
subsidiaries, and (z) none of the Company and its subsidiaries anticipates
material capital expenditures relating to any Environmental
Laws.
(y)
Disclosure
Controls. The Company and its subsidiaries maintain an
effective system of “disclosure controls and procedures” (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure. The Company and its
subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act.
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(z)
Accounting
Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of their respective principal
executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including,
but not limited to internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there
are no material weaknesses in the Company’s internal
controls.
(aa)
Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(bb)
Compliance with
OFAC. 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 is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares hereunder, 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.
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(cc) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. There is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules and regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(dd)
Additional
Certifications. Any certificate signed by any officer of the
Company and delivered to the Representative and counsel for the Underwriters in
connection with an offering of the Securities shall be deemed a representation
and warranty by the Company to each Underwriter participating in such offering
as to the matters covered thereby on the date of such certificate unless
subsequently amended or supplemented subsequent thereto.
4. Further Agreements of the
Company. The Company covenants and agrees with each
Underwriter that:
(a) Filings with the
Commission. The Company will (i) pay the registration fees for
this offering within the time period required by Rule 456(b)1(i) under the
Securities Act (without giving effect to the proviso therein) and in any event
prior to the Closing Date and (ii) file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to Rule 424 under the Securities Act
not later than the close of business on the second business day following the
date of determination of the public offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b) and Rule 430A,
430B or 430C under the Securities Act. The Company will file any
Issuer Free Writing Prospectus (including the Term Sheet in the form of Schedule
4 to the Underwriting Agreement) to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the Prospectus and each
Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as
the Representative may reasonably request.
(b) Delivery of
Copies. The Company will deliver, without charge, to each
Underwriter during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) and each Issuer Free Writing
Prospectus (if applicable) as the Representative may reasonably
request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in connection with sales of
the Securities by any Underwriter or dealer.
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(c) Amendments or Supplements; Issuer
Free Writing Prospectuses Before making, preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representative and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the Representative
reasonably objects unless, in the case of a filing, the Company is required by
law to make such filing.
(d) Notice to the
Representative. The Company will advise the Representative
promptly, and confirm such advice in writing, (i) when any amendment to the
Registration Statement has been filed or becomes effective; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer
Free Writing Prospectus has been filed; (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or the receipt of any comments from the Commission relating to
the Registration Statement or any other request by the Commission for any
additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any 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 existing when the
Prospectus, the Time of Sale Information or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by
the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Securities and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Time of Sale
Information. If at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not misleading or
(ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to
12
paragraph (c) above,
file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representative may designate, such
amendments or supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law.
(f) Ongoing
Compliance. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representative may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(g) Blue Sky
Compliance. The Company will qualify the Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in
effect so long as required for distribution of the Securities; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(h) Earning
Statement. The Company will make generally available to its
security holders and the Representative as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(i) Clear
Market. During the period from the date hereof through and
including the Closing Date or such later date as is specified in the
Underwriting Agreement, the Company will not, without the prior written consent
of the Representative, offer, sell, contract to sell or otherwise dispose of any
debt securities issued or guaranteed by the Company and having a tenor of more
than one year.
(j) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Registration Statement, the Time of
Sale Information and the Prospectus under the heading “Use of
proceeds”.
13
(k) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Securities.
(l) Filing of Exchange Act
Documents. The Company will file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the Prospectus Delivery Period.
(m) Exchange
Listing. The Company will use its reasonable best efforts to
list, subject to notice of issuance, the Securities on the New York Stock
Exchange (the “Exchange”).
(n) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the
Underwriters. Each Underwriter hereby represents and agrees
that
(a) It
has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under
the Securities Act (which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely a result of use by such underwriter,
would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed
on Schedule 3 to the Underwriting Agreement or prepared pursuant to Section 3(c)
or Section 4(c) above (including any electronic road show), or (iii) any free
writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i)
or (iii), an “Underwriter Free Writing Prospectus.”)
(b) Notwithstanding
the foregoing the Underwriters may use a term sheet substantially in the form of
Schedule 4 to the Underwriting Agreement without the consent of the
Company.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
6. Conditions of Underwriters'
Obligations. The obligation of each Underwriter to purchase
Securities on the Closing Date as provided herein is subject to the performance
by the Company of its covenants and other obligations hereunder and to the
following additional conditions:
14
(a) Registration Compliance; No Stop
Order. If a post-effective amendment to the Registration
Statement is required to be filed under the Securities Act, such post-effective
amendment shall have become effective, and the Representative shall have
received notice thereof, not later than 5:00 P.M., New York City time, on the
date of the Underwriting Agreement; if applicable, the Rule 462(b) Registration
Statement shall have become effective by 10:00 a.m. New York City time on the
business day following the date of the Underwriting Agreement; no order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Securities Act, shall be pending before or threatened by
the Commission; the Prospectus and each Issuer Free Writing Prospectus shall
have been timely filed with the Commission under the Securities Act (in the case
of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under
the Securities Act) and in accordance with Section 4(a) hereof; and all requests
by the Commission for additional information shall have been complied with to
the reasonable satisfaction of the Representative.
(b) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date; and the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(c) No
Downgrade. Subsequent to the earlier of (A) the Time of Sale
and (B) the execution and delivery of this Agreement, (i) no downgrading shall
have occurred in the rating accorded the Securities or any other debt securities
or preferred stock of or guaranteed by the Company by any “nationally recognized
statistical rating organization”, as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities
or of any other debt securities or preferred stock of or guaranteed by the
Company (other than an announcement with positive implications of a possible
upgrading).
(d) No
Material Adverse Change. No event or condition of a type
described in Section 3(f) hereof shall have
occurred or shall exist, which event or condition is not described in the Time
of Sale Information (excluding any amendment or supplement thereto) and the
Prospectus (excluding any amendment or supplement thereto) and the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officer's
Certificate. The Representative shall have received on and as
of the Closing Date a certificate of an executive officer of the Company who has
specific knowledge of the Company’s financial matters and is satisfactory to the
Representative
15
(i) confirming that
such officer has carefully reviewed the Registration Statement, the Time of Sale
Information and the Prospectus and, to the best knowledge of such officer, the
representations set forth in Sections 3(a) and 3(h) hereof are true
and correct, (ii) confirming that the other representations and warranties of
the Company in this Agreement are true and correct and that the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and (iii) to
the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort
Letters. On the date of this Agreement and on the Closing
Date, KPMG LLP and Ernst & Young LLP shall have furnished to the
Representative, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, containing statements
and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off” date no more than
three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of
Counsel for the Company. Vice President-General Counsel and
Secretary of the Company or the Assistant Secretary and Corporate Counsel,
counsel for the Company, shall have furnished to the Representative, at the
request of the Company, their written opinion and 10b-5 Statement, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B-1
hereto.
(h) Opinion and 10b-5 Statement of
Outside Counsel for the Company. ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
outside counsel for the Company, shall have furnished to the Representative, at
the request of the Company, its written opinion and 10b-5 Statement, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B-2
hereto.
(i) Opinion and 10b-5 Statement of
Counsel for the Underwriters. The Representative shall have
received on and as of the Closing Date an opinion and 10b-5 Statement of [insert
name of Underwriter’s counsel],
counsel for the Underwriters, with respect to such matters as the Representative
may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(j) No Legal Impediment to
Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date, prevent the issuance or sale of the Securities; and no
injunction or order of any
16
federal, state or
foreign court shall have been issued that would, as of the Closing Date, prevent
the issuance or sale of the Securities.
(k) Good Standing. The
Representative shall have received on and as of the Closing Date satisfactory
evidence of the good standing of the Company and its Significant Subsidiaries in
their respective jurisdictions of organization and their good standing in such
other jurisdictions as the Representative may reasonably request, in each case
in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(l) Additional
Documents. On or prior to the Closing Date, the Company shall
have furnished to the Representative such further certificates and documents as
the Representative may reasonably request.
(m) Exchange
Listing. The Securities shall have been approved for listing
on the Exchange, subject to official notice of issuance.
All opinions, letters, certificates and
evidence mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time
of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use therein.
17
(b) Indemnification of the
Company. Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any Time of Sale Information, it being
understood and agreed that the only such information consists of the information
identified in the Underwriting Agreement as being provided by the
Underwriters.
(c) Notice and
Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may
be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 7 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 7. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 7
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such proceeding and shall pay the fees and expenses of
counsel related to such proceeding as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate
18
firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for any Underwriter, its affiliates, directors and officers and any control
persons of such Underwriter shall be designated in writing by the Representative
and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall
be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If
the indemnification provided for in paragraphs (a) and (b) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (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 from the offering of the Securities
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) but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, 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 shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of
the Securities and the total underwriting discounts and commissions received by
the Underwriters
19
in
connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
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.
(e) Limitation on
Liability. 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by such
Underwriter were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
8. Termination. This
Agreement may be terminated in the absolute discretion of the Representative, by
notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the Exchange or the over-the-counter market; (ii) trading
of any securities issued or guaranteed by the Company shall have been suspended
on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representative, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
9. Defaulting
Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Securities that it has
agreed to purchase
20
hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of
such Securities by other persons satisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such
default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Securities on such
terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters
or the Company may postpone the Closing Date for up to five full business days
in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement and
the Prospectus or in any other document or arrangement, and the Company agrees
to promptly prepare any amendment or supplement to the Registration Statement
and the Prospectus that effects any such changes. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement
unless the context otherwise requires, any person not listed in the Underwriting
Agreement that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities that such Underwriter agreed to purchase hereunder plus
such Underwriter's pro rata share (based on
the principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate principal amount
of such Securities that remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this
Section 9 shall be without liability on the part of the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
10. Payment of
Expenses. (a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will
21
pay
or cause to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Securities
and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any
Time of Sale Information and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing each of the Transaction Documents; (iv) the fees
and expenses of the Company's counsel and independent accountants; (v) the fees
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of
such jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel for the Underwriters); (vi) any fees charged by rating
agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such
parties); (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of any offering by, the National Association of
Securities Dealers, Inc.; (ix) all expenses incurred by the Company in
connection with any “road show” presentation to potential investors; and (x) all
expenses and application fees related to the listing of the Securities on the
Exchange.
(b) If
(i) this Agreement is terminated pursuant to Section 8, (ii) the Company for any
reason fails to tender the Securities for delivery to the Underwriters or (iii)
the Underwriters decline to purchase the Securities for any reason permitted
under this Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and any controlling persons referred to herein, and the
affiliates of each Underwriter referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed
to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
22
13. Certain Defined
Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act.
14. Miscellaneous. (a) Authority of the
Representative. Any action by the Underwriters hereunder may
be taken by the Representative on behalf of the Underwriters, and any such
action taken by the Representative shall be binding upon the
Underwriters.
(b) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriters shall
be given to the Representative at the address set forth in the Underwriting
Agreement. Notices to the Company shall be given to it at ▇▇▇▇
▇&▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax:______); Attention: Vice
President-Finance and Treasurer, with copies thereof directed to the Legal
Department of the Company at ▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Vice President-General Counsel and Secretary, or if
different, to the address set forth in the Underwriting Agreement.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Amendments or
Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(e) Headings. The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
23
|
Annex
A
|
[Form of
Underwriting Agreement]
Underwriting
Agreement
|
__________,
20__
|
[Name(s) of
Representative(s)]
As
Representative(s) of the
several
Underwriters listed
in
Schedule 1 hereto
c/o
[Name(s) and Address(es) of Representative(s)]
Ladies and
Gentlemen:
▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee
corporation (the “Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representative (the “Representative”), $____________ principal amount
of its _____% Notes due 20__ having the terms set forth in Schedule 2 hereto
(the “Securities”). The Securities will be issued pursuant to an
Indenture dated as of August 1, 1998 (the “Indenture”) between the Company and
The Bank of New York, as trustee (the “Trustee”).
The Company agrees to issue and sell the
Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company the respective principal amount of
Securities set forth opposite such Underwriter's name in Schedule 1 hereto at a
price equal to _____% of the principal amount thereof plus accrued interest, if
any, from ______________, 20__ to the Closing Date (as defined
below). The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
The Company understands that the Underwriters
intend to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in the judgment of the Representative is
advisable, and initially to offer the Securities on the terms set forth in the
Time of Sale Information and the Prospectus. Schedule 3 hereto sets
forth the Time of Sale Information made available at the Time of Sale, including
certain information provided by the underwriters orally to
purchasers. The Company
24
acknowledges and
agrees that the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Securities purchased by it to or through any Underwriter.
Payment for and
delivery of the Securities shall be made at the offices of [ ] at
10:00 A.M., New York City time, on _____________, 20__, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in
writing.
Payment for the
Securities shall be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representative against delivery to
the nominee of The Depository Trust Company, for the account of the
Underwriters, of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representative not later than
1:00 P.M., New York City time, on the business day prior to the Closing
Date.
The Company and the Underwriters acknowledge
and agree that the only information relating to any Underwriter that has been
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto) any Issuer Free Writing Prospectus or
any Time of Sale Information and any Preliminary Prospectus consists of the
following: [ ] [and the following
information in the Issuer Free Writing Prospectus dated
, 20__:
[ ]].
All provisions contained in the document
entitled ▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation Debt Securities Underwriting Agreement
Standard Provisions are incorporated by reference herein in their entirety and
shall be deemed to be a part of this Underwriting Agreement to the same extent
as if such provisions had been set forth in full herein, except that if any term
defined in such Underwriting Agreement Standard Provisions is otherwise defined
herein, the definition set forth herein shall control.
This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
25
If
the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
|
Very truly
yours,
|
|
|
▇▇▇▇▇▇ &
▇▇▇▇▇ Corporation
|
|
|
By_______________________
|
|
|
Title:
|
Accepted:
__________, 20__
[NAME(S) OF
REPRESENTATIVE(S)]
For [itself]
[themselves] and on behalf of the
several
Underwriters listed
in Schedule 1
hereto.
By___________________________
Authorized
Signatory
26
|
Schedule
1
|
|
Underwriter
|
Principal
Amount
|
|
|
$
|
| _______________ | ||
|
Total
|
$
|
27
|
Schedule
2
|
Representative(s)
and Address(es) for Notices:
Certain Terms of the
Securities:
Title of
Securities: _____% Notes due 20__
Aggregate Principal
Amount of Securities: $____________
Maturity
Date: ___________, 20__
Interest
Rate: ____%
Interest Payment
Dates: ________ and ________, commencing ________,
20__
Record
Dates: ________ and ________
Redemption
Provisions:
[Other
Provisions:]
28
Schedule
3
Time
of Sale Information
[list each Issuer Free Writing Prospectus to be
included in the Time of Sale Information]
29
Schedule
4
[Form for
Debt]
▇▇▇▇▇▇ & ▇▇▇▇▇
Corporation
Pricing Term
Sheet
|
Issuer:
|
|
|
Size:
|
$_________
|
|
Maturity:
|
_____________
__, 20__
|
|
Coupon:
|
____%
|
|
Price:
|
____% of face
amount
|
|
Yield to
maturity:
|
____%
|
|
[Spread to
Benchmark Treasury:
|
____%]
|
|
[Benchmark
Treasury:]
|
_____]
|
|
[Benchmark
Treasury [Price] and Yield:
|
______ _____%]
|
|
Interest
Payment Dates:
|
_______ and
_______, commencing ______, 2006
|
|
Redemption
Provisions:
|
|
|
[First call
date:
|
________]
|
|
[Make-whole
call
|
[At any
time][Before the first call date] at a discount rate of Treasury plus
__basis points]
|
|
Redemption
prices:
|
Commencing
_______: ___%
Commencing
_______: ___%
Commencing
_______: 100%
|
|
[Redemption
with proceeds of equity offering
|
Prior to ____,
up to 35% may be redeemed at ___%]
|
|
Settlement:
|
T+_; _________
__, 20__
|
|
[CUSIP:
|
]
|
|
[Ratings:
|
]
|
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 toll-free
1-8[xx-xxx-xxxx] [or emailing [ ] at [ ]]
30
Schedule
5
List
of Significant Subsidiaries
[list all significant subsidiaries]
31
Annex
B-1
[Form
of Opinion of Company Counsel]
____________,
20____
[Name(s) of
Representative(s)]
As
Representative(s) of the
several
Underwriters listed
in
Schedule 1 hereto
c/o
[Name(s) and Address(es) of Representative(s)]
Ladies and
Gentlemen:
This opinion is
directed to the Underwriters pursuant to Section 6(g) of the Underwriting
Agreement dated ________________, 20____ (the “Underwriting Agreement”), among
the Company and you, with respect to the offer and sale of the
Securities. All terms defined or used in the Underwriting Agreement
have the same meaning when used herein, unless otherwise noted.
I
am Vice President-General Counsel and Secretary of the Company and have acted as
such in connection with the Securities and the Underwriting
Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the
foregoing, it is my opinion that:
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Tennessee, has the corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Time of Sale
Information and the Prospectus, and is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is required,
except where the failure to be so qualified, in good standing or have such power
or authority would not individually or in the aggregate have a material adverse
effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries considered as one enterprise or on
the performance by the Company of its obligations under the Securities (a
“Material Adverse Effect”);
(ii) Each
subsidiary of the Company which is a significant subsidiary as defined in Rule
1-02 of Regulation S-X of the Exchange Act (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Time of Sale Information and the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, except where
32
the
failure to so qualify would not have a Material Adverse Effect; and all of the
issued and outstanding capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares (except as otherwise stated in the Registration
Statement), is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(iii) Except
as described in the Registration Statement, the Time of Sale Information and the
Prospectus (as to which the Company can express no opinion at this time
concerning the Company's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of the Company), there is no pending, or to the best knowledge of any
financial officer of the Company, threatened action or proceeding before any
court or administrative agency which individually (or in the aggregate in the
case of any group of related lawsuits) is expected to have a material adverse
effect on the financial condition of the Company or the ability of the Company
and its subsidiaries considered as one entity to perform its obligations under
the Indenture;
(iv) The
Indenture has been duly authorized by the Company, will be substantially in the
form heretofore supplied to the Representative and each Underwriter and, when
duly executed and delivered by the Company and the other parties thereto, will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to the Enforceability
Exceptions;
(v) When
executed, issued, authenticated and delivered pursuant to the provisions of the
Indenture and sold and paid for as provided in this Agreement, the Securities
will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to the Enforceability Exceptions; and
the Holders of such Securities will be entitled to the benefits provided by such
Indenture;
(vi) The
Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and filings with,
the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the
Registration Statement, the Time of Sale Information and the Prospectus, except
where the failure to possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, neither
the Company nor any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary course;
(vii) I
have reviewed or caused to be reviewed by attorneys under my supervision the
Registration Statement, Time of Sale Information and the Prospectus and each
amendment and supplement thereto, and nothing has come to my attention to
33
cause me to believe
that the Registration Statement, at the Effective Time (including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C to be part of
the Registration Statement at the Effective Time), contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, that the Time of Sale
Information, at the Time of Sale contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that the Prospectus or any amendment or supplement thereto as of
its date and the Closing Date contained or contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements and other financial information
contained therein, as to which such counsel need express no
belief).;
(viii) I
do not know of any statute or regulation or legal or governmental proceeding
required to be described in the Registration Statement, the Time of Sale
Information and the Prospectus which is not described as required, nor of any
contract or document of a character required to be described in the Registration
Statement, Time of Sale Information or the Prospectus or to be filed as exhibits
to the Registration Statement which is not described and filed as required; and
the descriptions in the Registration Statement, Time of Sale Information and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The
execution and delivery of each of the Underwriting Agreement, the Securities and
the Indenture (collectively, the “Transaction Documents”) and the consummation
of the transactions contemplated therein will not conflict with or constitute a
breach of, or 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 of
its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any such subsidiary is a
party or by which it or any of them may be bound or to which any of the property
or assets of the Company or any such subsidiary is subject, which conflict,
breach or default would individually or in the aggregate have a Material Adverse
Effect, nor will such action result in any material violation of the provisions
of the charter or by-laws of the Company or any law, administrative regulation
or administrative or court order or decree currently in effect or in effect at
the time of execution and delivery of this Agreement and the Indenture and
applicable to the Company or any of its subsidiaries;
(x) No
consent, approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by the Transaction Documents, except such as may be
required under the Securities Act, the Trust Indenture Act or state securities
or Blue Sky laws;
(xi) The
Registration Statement is an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the Commission
34
not
earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering has been initiated or threatened by the
Commission; as of the Effective Time, the Registration Statement and the
Prospectus, at the time the Registration Statement became effective and as of
the date hereof, complied in all material respects with the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder; and
(xii) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
My
opinions as to the enforceability of the Indenture, the Securities and
Underwriting Agreement set forth in subparagraphs (iv), (v) and (xii) above, are
subject to any principles of public policy limiting the right to enforce the
indemnification and contribution provisions contained in Section 7 of the
Underwriting Agreement.
In
rendering the foregoing opinion, we have assumed that (i) all signatures on all
documents examined by us are genuine and that where any such signature (other
than a signature purporting to have been made on behalf of the Company) purports
to have been made in a corporate, governmental, fiduciary or other capacity, the
person who affixed such signature had the due authority to do so,
(ii) certain factual matters contained in certificates of public officials
are accurate, true and correct, and (iii) photostat copies of such documents,
records and certificates conform to the originals.
This opinion is
intended solely for the benefit of the Underwriters and is not to be relied on
by, and no copies of it are to be delivered to, any other person without my
prior written consent, except that Underwriters’ counsel may rely upon this
opinion as to all matters of Tennessee law in rendering its opinion of even date
herewith. I am not assuming any professional responsibility to any
other person by rendering this opinion. It is understood that this
opinion speaks as of the date given, notwithstanding any delivery as
contemplated above on any other date.
35
Annex
B-2
[Form
of Opinion of Outside Counsel for the Company]
____________,
20____
[Name[s] of managing
underwriter[s]]
as
Representative[s] of the several Underwriters named in
Schedule 1 to the
Underwriting Agreement referred to below
[c/o][[name of lead
manager]]
[address of lead
manager]
Ladies and
Gentlemen:
We
have acted as special counsel for ▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee
corporation (the “Company”), in connection with the Underwriting Agreement dated
_______, 20__ (the “Underwriting Agreement”) with you and the other several
Underwriters named in Schedule 1 thereto under which you and such other
Underwriters have severally agreed to purchase from the Company $[insert
principal amount] aggregate principal amount of its [designation of security]
(the “Securities”). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of August 1, 1998 (the “Base Indenture”),
as amended by a [insert supplemental indenture number] supplemental indenture
dated _______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and The Bank of New York Trust Company, N.A., as
trustee (the “Trustee”). The Base Indenture as amended by the [insert
supplemental indenture number] Supplemental Indenture is hereinafter referred to
as the “Indenture”.
We
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We
have also reviewed the Company’s registration statement on Form S-3 (File No.
333-_____) (including the documents incorporated by reference therein (the
“Incorporated Documents”)) filed with the Securities and Exchange Commission
(the “Commission”) pursuant to the provisions of the Securities Act of 1933, as
amended (the “Act”), relating to the registration of securities (the “Shelf
Securities”) to be issued from time to time by the Company and have participated
in the preparation of the preliminary prospectus supplement dated _______, 20__
(the “Preliminary Prospectus Supplement”) relating to the Securities, the Term
Sheet dated _______, 20__ relating to the Securities and the prospectus
supplement dated _________, 20__ relating to the Securities (the “Prospectus
Supplement”). The registration statement became effective under the Act and the
Indenture qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), upon the filing of the registration statement with the
Commission on December 3, 2008 pursuant to Rule 462(e). The registration
statement at the date of the Underwriting Agreement, including the Incorporated
36
Documents and the
information deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as
the “Registration Statement”, and the related prospectus (including the
Incorporated Documents) dated ____________, 20__ relating to the Shelf
Securities is hereinafter referred to as the “Basic Prospectus.” The
Basic Prospectus, as supplemented by the Prospectus Supplement, in the form
first used to confirm sales of the Securities (or in the form first made
available by the Company to the Underwriters to meet requests of purchasers of
the Securities under Rule 173 under the Act), is hereinafter referred to as the
“Prospectus”.
We
have assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”), except for
required ▇▇▇▇▇ formatting changes, to physical copies of the documents submitted
for our examination.
Capitalized terms
used but not otherwise defined herein are used as defined in the Underwriting
Agreement.
Based upon the
foregoing, we are of the opinion that:
1. Assuming
the due authorization, execution and delivery by the Company, the Indenture is a
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, provided that we express no opinion as to the
enforceability of any waiver of rights under any usury or stay law.
2. Assuming
the due authorization of the Securities by the Company, the Securities, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture pursuant to which such Securities are to be issued,
provided that we express no opinion as to the enforceability of any waiver of
rights under any usury or stay law.
We
have considered the statements included in the Prospectus under the captions
“Description of Debt Securities” and “Description of the Securities” insofar as
they summarize provisions of the Indenture and the Securities. In our
opinion, such statements fairly summarize these provisions in all material
respects.
In
rendering the opinions in paragraphs (1) and (2) above, we have assumed that
each party to the Documents has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction of its organization. In
addition, we have assumed that (i) the execution, delivery and performance by
each party thereto of each Document to which it is a party, (a) are within its
corporate powers, (b) do not
37
contravene, or
constitute a default under, the certificate of incorporation or bylaws or other
constitutive documents of such party, (c) require no action by or in respect of,
or filing with, any governmental body, agency or official and (d) do not
contravene, or constitute a default under, any provision of applicable law or
regulation or any judgment, injunction, order or decree or any agreement or
other instrument binding upon such party and (ii) each Document (other than the
Underwriting Agreement) is a valid, binding and enforceable agreement of each
party thereto, (other than as expressly covered above in respect of the
Company).
We
are members of the Bar of the State of New York, and the foregoing opinion is
limited to the laws of the State of New York and the federal laws of the United
States of America, except that we express no opinion as to any law, rule or
regulation that is applicable to the Company, the Documents or such transactions
solely because such law, rule or regulation is part of a regulatory regime
applicable to any party to any of the Documents or any of its affiliates due to
the specific assets or business of such party or such
affiliate. Insofar as the foregoing opinion involves matters governed
by the laws of the state of Tennessee, we have relied, without independent
investigation, on the opinion of [name of local counsel for the Company]
delivered to you today pursuant to the Underwriting Agreement.
This opinion is
rendered solely to you and the other several Underwriters in connection with the
Underwriting Agreement. This opinion may not be relied upon by you
for any other purpose or relied upon by any other person (including any person
acquiring Securities from the several Underwriters) or furnished to any other
person without our prior written consent.
|
Very truly
yours,
|
| ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ |
38
[Form
of 10b-5 Statement of Outside Counsel for the Company]
____________,
20____
[Name[s] of managing
underwriter[s]]
as
Representative[s] of the several Underwriters named in
Schedule 1 to the
Underwriting Agreement referred to below
[c/o][[name of lead
manager]]
[address of lead
manager]
Ladies and
Gentlemen:
We
have acted as special counsel for ▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee
corporation (the “Company”), in connection with the Underwriting Agreement dated
_______, 20__ (the “Underwriting Agreement”) with you and the other several
Underwriters named in Schedule 1 thereto under which you and such other
Underwriters have severally agreed to purchase from the Company $[insert
principal amount] aggregate principal amount of its [designation of security]
(the “Securities”). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of August 1, 1998 (the “Base Indenture”),
as amended by a [insert supplemental indenture number] supplemental indenture
dated _______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and The Bank of New York Trust Company, N.A., as
trustee (the “Trustee”). The Base Indenture as amended by the [insert
supplemental indenture number] Supplemental Indenture is hereinafter referred to
as the “Indenture”.
We
also have reviewed the Company’s registration statement on Form S-3 (File No.
333-_____) (including the documents incorporated by reference therein (the
“Incorporated Documents”)) filed with the Securities and Exchange Commission
(the “Commission”) pursuant to the provisions of the Securities Act of 1933, as
amended (the “Act”), relating to the registration of securities (the “Shelf
Securities”) to be issued from time to time by the Company and have participated
in the preparation of the preliminary prospectus supplement dated _______,
20__ (the “Preliminary Prospectus Supplement”) relating to the Securities,
the Term Sheet dated _______, 20__ relating to the Securities and the prospectus
supplement dated _______, 20__ relating to the Securities (the “Prospectus
Supplement”). The registration statement at the date of the
Underwriting Agreement, including the Incorporated Documents and the information
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430B under the Act, is hereinafter referred to as the
“Registration Statement”, and the related prospectus (including the Incorporated
Documents) dated _______, 20__ relating to the Shelf Securities is hereinafter
referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the Preliminary Prospectus Supplement, together with the free
writing prospectus set forth in Schedule 4 to the Underwriting Agreement for the
Securities are hereinafter called the “Disclosure Package”. The Basic
Prospectus, as supplemented by the Prospectus Supplement, in the form first used
to confirm sales of the Securities (or in the form first made available by the
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Company to the
Underwriters to meet requests of purchasers of the Securities under Rule 173
under the Act), is hereinafter referred to as the “Prospectus”.
We
have assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”), except for
required ▇▇▇▇▇ formatting changes, to physical copies of the documents submitted
for our examination.
The primary purpose of our professional
engagement was not to establish or confirm factual matters or financial, accounting or
quantitative information. Furthermore, many determinations involved
in the preparation of the Registration Statement, the Disclosure Package and the
Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of
our opinion separately delivered to you today in respect of certain matters
under the laws of the State of New York and the federal laws of the
United States of America. As a result, we are not
passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Disclosure Package and
the Prospectus, and we have not ourselves checked the accuracy, completeness or
fairness of, or otherwise verified, the information
furnished in such documents (except to the extent expressly set forth in our
opinion letter separately delivered to you today as to statements included in
the Prospectus under the captions “Description of Debt Securities” and
“Description of the Securities”). However, in the course of
our acting as counsel to the Company in connection with the preparation of the
Registration Statement, the Disclosure Package and the Prospectus, we have
generally reviewed and discussed with your representatives and your counsel
and with certain officers and employees of, and independent public accountants
for, the Company the information furnished, whether or not subject to our check
and verification. We have also reviewed and relied upon certain corporate records and documents,
letters from counsel and accountants and oral and written statements of officers
and other representatives of the Company and others as to the existence and
consequence of certain factual and other matters.
On the basis of the information gained in the
course of the performance of the services rendered above, but without
independent check or verification except as stated above:
(i) the Registration Statement and the
Prospectus appear on their face to be appropriately responsive in all material respects to
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder; and
(ii) nothing has come to our attention
that causes us to believe that, insofar as relevant to the offering of
the
Securities,:
(a) on the date of the Underwriting
Agreement, the Registration Statement contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
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(b) at [insert Time of Sale], the Disclosure Package
contained any untrue statement of a material fact or omitted 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 Prospectus as of the date of the
Underwriting Agreement or as of the date hereof contained or contains any untrue
statement of a material fact or omitted or omits 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.
In providing this letter to you and the
other several Underwriters, we have not been called to pass upon, and we express
no view regarding, the financial statements or financial schedules or other
financial or accounting data included in the Registration Statement, the
Disclosure Package, the Prospectus, or the Statement of Eligibility of the
Trustee on Form T-1. In addition, we express no view as to the
conveyance of the Disclosure Package or the
information contained therein to investors.
This letter is
delivered solely to you and the other several Underwriters in connection with
the Underwriting Agreement. This letter may not be relied upon by you
for any other purpose or relied upon by any other person (including any person
acquiring Securities from the several Underwriters) or furnished to any other
person without our prior written consent.
|
Very truly
yours,
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| ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ |
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