BORGWARNER INC. __% SENIOR NOTES DUE 2016 UNDERWRITING AGREEMENT
__%
SENIOR NOTES DUE 2016
October
[__],
2006
October
[__],
2006
To
the
Managers named in Schedule
I
hereto
for
the
Underwriters named in Schedule
II
hereto
Ladies
and Gentlemen:
BorgWarner
Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the underwriters named in Schedule II
hereto
(the “Underwriters”),
for
whom you are acting as managers (the “Managers”),
the
principal amount of its debt securities identified in Schedule I
hereto
(the “Securities”),
to be
issued under the indenture specified in Schedule I
hereto
(the “Indenture”)
between the Company and the Trustee identified in such Schedule (the
“Trustee”).
If
the firm or firms listed in Schedule II
hereto
include only the Managers listed in Schedule I
hereto,
then the terms “Underwriters” and “Managers” as used herein shall each be deemed
to refer to such firm or firms.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement, including a prospectus, (the file number of which is
set
forth in Schedule I
hereto)
on Form S-3, relating to securities (the “Shelf
Securities”),
including the Securities, to be issued from time to time by the Company. The
registration statement as amended to the date of this Agreement, including
the
information (if any) deemed to be part of the registration statement at the
time
of effectiveness pursuant to Rule 430A or Rule 430B under the Securities
Act of 1933, as amended (the “Securities
Act”),
is
hereinafter referred to as the “Registration
Statement,”
and
the
related prospectus covering the Shelf Securities dated October [__],
2006 in
the form first used to confirm sales of the Securities (or in the form first
made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the
“Basic
Prospectus.”
The
Basic
Prospectus, as supplemented by the prospectus supplement specifically relating
to the Securities in the form first used to confirm sales of the Securities
(or
in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus,”
and
the term “preliminary
prospectus”
means
any preliminary form of the Prospectus. For purposes of this Agreement,
“free
writing prospectus”
has
the
meaning set forth in Rule 405 under the Securities Act, “Time
of Sale Prospectus”
means
the preliminary prospectus together with the free writing prospectuses each
identified in Schedule
I
hereto.
As
used
herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and Prospectus shall include the
documents, if any, incorporated by reference therein. The terms “supplement,”
“amendment,”
and
“amend”
as
used
herein with respect to the Registration Statement, the Basic Prospectus, the
Time of Sale Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
that
are deemed to be incorporated by reference therein.
1. Representations
and Warranties.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings
for
such purpose are pending before or, to the knowledge of the Company, threatened
by the Commission.
(b) (i)
Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(ii)
each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii)
the
Registration Statement as of the date hereof does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iv)
the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (v)
the Time
of Sale Prospectus does not, and at the time of each sale of the Securities
in
connection with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in Section
4),
the
Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit
to
state a material fact necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, and (vi)
the
Prospectus does not contain and, as amended or supplemented, if applicable,
will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and
warranties set forth in this paragraph do not apply to (A)
statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Managers
expressly for use therein or (B)
that
part of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
“Trust
Indenture Act”),
of
the Trustee.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that
the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or behalf of or used or referred to
by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of
the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule
I
hereto,
and electronic road shows each furnished to you before first use, the Company
has not prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business
as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated or organized, is validly
existing as a corporation or other legal entity in good standing under the
laws
of the jurisdiction of its incorporation or organization, has the corporate
or
other power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and (except
for
minority interests set forth in a schedule previously provided by the Company
to
the Underwriters) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by, and 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
and equitable principles of general applicability.
(h) The
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for
by
the Underwriters in accordance with the terms of this Agreement, will be valid
and binding obligations of the Company, in each case enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the
Indenture.
(i) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Securities will
not
contravene any provision of applicable law (expect for contraventions of
applicable law which, individually and in the aggregate, would not have a
material adverse effect on the Company and would not adversely affect any of
the
transactions contemplated hereby) or the the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the securities
or
Blue Sky laws of the various states in connection with the offer and sale of
the
Securities.
(j) There
has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale
Prospectus.
(k) There
are
no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its subsidiaries
is
subject (i) other than proceedings accurately described in all material respects
in the Time of Sale Prospectus and proceedings that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on
the
power or ability of the Company to perform its obligations under this Agreement,
the Indenture or the Securities or to consummate the transactions contemplated
by the Prospectus or (ii) that are required to be described in the Registration
Statement or the Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be described
in
the Registration Statement or the Prospectus or to be filed as exhibits to
the
Registration Statement that are not described or filed as required.
(l) Each
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects with
the Securities Act and the applicable rules and regulations of the Commission
thereunder.
(m) The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(n) The
Company and its subsidiaries (i)
are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental
Laws”),
(ii)
have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii)
are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) There
are
no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license
or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have
a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
2. Agreements
to Sell and Purchase.
The
Company hereby agrees to sell to the several Underwriters, and each Underwriter,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and not jointly,
to purchase from the Company the respective principal amounts of Securities
set
forth in Schedule II
hereto
opposite its name at the purchase price set forth in Schedule I
hereto.
3. Public
Offering.
The
Company is advised by you that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Company is further advised by you that the Securities
are to be offered to the public upon the terms set forth in the
Prospectus.
4. Payment
and Delivery.
Payment
for the Securities shall be made to the Company in Federal or other funds
immediately available in New York City on the closing date and time set forth
in
Schedule I
hereto,
or at such other time on the same or such other date, not later than the fifth
business day thereafter, as may be designated by you in writing. The time and
date of such payment are hereinafter referred to as the “Closing
Date.”
Payment
for the Securities shall be made against delivery to you on the Closing Date
for
the respective accounts of the several Underwriters of the Securities registered
in such names and in such denominations as you shall request in writing not
less
than one full business day prior to the Closing Date, with any transfer taxes
payable in connection with the transfer of the Securities to the Underwriters
duly paid.
5. Conditions
to the Underwriters’ Obligations.
The
several obligations of the Underwriters are subject to the following
conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or any of its
subsidiaries by any “nationally recognized statistical rating organization,” as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus that, in your judgment, is material
and
adverse and that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i)
above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and
that
the Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the
Closing Date.
The
officer signing and delivering such certificate may rely upon the best of his
or
her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of Miller,
Canfield, Paddock and Stone, P.L.C., Troy, Michigan, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the State of Delaware, has the corporate power and
corporate authority to own its property and to conduct its business as described
in the Time of Sale Prospectus and, based solely on good standing certificates
issued by the relevant governmental authorities, is duly qualified to transact
business as a foreign corporation and is in good standing in the States of
Illinois and Michigan;
(ii) each
of
the Company’s subsidiaries listed below has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and corporate authority to own its property
and to conduct its business as described in the Time of Sale Prospectus and,
based solely on good standing certificates issued by the relevant governmental
authorities, is duly qualified to transact business as a foreign corporation
and
is in good standing in the states shown below:
(A) BorgWarner
▇▇▇▇▇ TEC Inc. (qualified in New York and Oklahoma);
(B) BorgWarner
Emissions Systems Inc. (qualified in Arkansas, Illinois, Mississippi, and
Oklahoma);
(C) BorgWarner
Turbo Systems Inc. (qualified in Illinois, Michigan, North Carolina, and
Texas);
(D) BorgWarner
Transmission Systems Inc. (qualified in Illinois and Michigan);
(E) BorgWarner
TorqTransfer Systems Inc. (qualified in Indiana, Michigan, South Carolina,
and
Texas); and
(F) BorgWarner
Thermal Systems Inc. (qualified in Indiana, Michigan, and North
Carolina);
(iii) this
Agreement has been duly authorized, executed and delivered by the
Company;
(iv) the
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by, and 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
and equitable principles of general applicability;
(v) the
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for
by
the Underwriters in accordance with the terms of this Agreement, will be valid
and binding obligations of the Company, in each case enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the
Indenture;
(vi) the
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Securities will
not
contravene any provision of applicable law or the certificate of incorporation
or by laws of the Company or, to the best of such counsel’s knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is filed or incorporated by reference as an exhibit to the
Company’s Annual Report on Form 10 K for the fiscal year ended December 31,
2005, or, to the best of such counsel’s knowledge, any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the securities
or
Blue Sky laws of the various states or the bylaws and rules and regulations
of
the NASD (as to which such counsel need express no opinion) in connection with
the offer and sale of the Securities;
(vii) the
statements relating to legal matters, documents or proceedings included in
(A)
the Time
of Sale Prospectus and the Prospectus under the captions “Description of Notes”
insofar as relevant to the offering of the Securities and “Plan of
Distribution,” (B)
the
Prospectus under the captions “Description of Debt Securities” and
“Underwriters” and (C)
the
Registration Statement in Item 15, in each case fairly summarize in all
material respects such matters, documents or proceedings;
(viii) the
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
and
(ix) (A)
in the
opinion of such counsel (1)
each
document filed pursuant to the Exchange Act and incorporated by reference in
the
Registration Statement and the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein, as to which such counsel need not express any opinion) appeared on
its
face to be appropriately responsive as of its filing date in all material
respects to the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and
(2)
the
Registration Statement and the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein and except for that part of the Registration Statement that constitutes
the Form T-1, as to which such counsel need not express any opinion) appear
on their face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations
of
the Commission thereunder, and (B)
nothing
has come to the attention of such counsel that causes such counsel to believe
that (1)
any part
of the Registration Statement, when such part became effective (except for
the
financial statements and financial schedules and other financial and statistical
data included therein and except for that part of the Registration Statement
that constitutes the Form T-1, as to which such counsel need not express
any belief), 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, (2)
the
Registration Statement or the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein and except for that part of the Registration Statement that constitutes
the Form T-1, as to which such counsel need not express any belief) on the
date of this Agreement 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, (3)
the Time
of Sale Prospectus (except for the financial statements and financial schedules
and other financial and statistical data included therein, as to which such
counsel need not express any belief) as of the date of this Agreement or as
amended or supplemented, if applicable, as of the Closing Date contains any
untrue statement of a material fact 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 or (4)
the
Prospectus (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need not express any belief) as amended or supplemented, if applicable, as
of
the Closing Date contains any untrue statement of a material fact 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.
(d) The
Underwriters shall have received on the Closing Date an opinion of the General
Counsel or the Corporate Counsel of the Company, dated the Closing Date, to
the
effect that:
(i) the
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the State of Delaware, has the corporate power and
corporate authority to own its property and to conduct its business as described
in the Time of Sale Prospectus and is duly qualified to transact business and
is
in good standing in each jurisdiction in which the conduct of its business
or
its ownership or leasing of property requires such qualification, except to
the
extent that the failure to be so qualified or be in good standing would not
have
a material adverse effect on the Company and its subsidiaries, taken as a
whole;
(ii) each
subsidiary of the Company has been duly incorporated or organized, is validly
existing as a corporation or other legal entity in good standing under the
laws
of the jurisdiction of its incorporation or organization, has the corporate
power and authority to own its property and to conduct its business as described
in the Time of Sale Prospectus and is duly qualified to transact business and
is
in good standing in each jurisdiction in which the conduct of its business
or
its ownership or leasing of property requires such qualification, except to
the
extent that the failure to be so qualified or be in good standing would not
have
a material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) the
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Securities will
not
contravene any provision of applicable law or the certificate of incorporation
or by laws of the Company or, to the best of such counsel’s knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a
whole, or, to the best of such counsel’s knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order
of,
or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the securities
or
Blue Sky laws of the various states in connection with the offer and sale of
the
Securities;
(iv) after
due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party
or to which any of the properties of the Company or any of its subsidiaries
is
subject that are required to be described in the Registration Statement or
the
Prospectus and are not so described or of any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(e) The
Underwriters shall have received on the Closing Date an opinion of Sidley Austin
LLP, Chicago, Illinois, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in Sections 5(c)(iii),
5(c)(iv),
5(c)(v)
and
5(c)(vii)
(but
only as to the statements in the Prospectus under “Description of Debt
Securities,” “Description of the Senior Notes” insofar as relevant to the
offering of the Securities and “Underwriters”) and clauses 5(c)(ix)(A)(2),
5(c)(ix)(B)(2),
5(c)(ix)(B)(3)
and
5(c)(ix)(B)(4)
above.
With
respect to clauses 5(c)(ix)(B)
above,
counsel for the Company may state that their opinions and beliefs are based
upon
their participation in the preparation of the Registration Statement, the Time
of Sale Prospectus, the Prospectus and any amendments or supplements thereto
and
review and discussion of the contents thereof, but are without independent
check
or verification, except as specified. With respect to clauses 5(c)(ix)(A)(2),
5(c)(ix)(B)(2),
5(c)(ix)(B)(3)
and
5(c)(ix)(B)(4)
above,
Miller, Canfield, Paddock and Stone, PLC may state that their opinions and
beliefs are based upon their participation in the preparation of the
Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, the free writing prospectuses identified
as
part of the Time of Sale Prospectus in Schedule
I
hereto,
the prospectus supplement and any amendments or supplements thereto (other
than
the documents incorporated by reference) and upon review and discussion of
the
contents of the Registration Statement, the Time of Sale Prospectus and the
Prospectus (including documents incorporated by reference), but are without
independent check or verification, except as specified.
The
opinion of counsel for the Company described in Section 5(c)
above
shall be rendered to the Underwriters at the request of the Company and shall
so
state therein.
(f) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in
form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information
of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided
that the
letter delivered on the Closing Date shall use a “cut-off date” not earlier than
the date hereof.
6. Covenants
of the Company.
The
Company covenants with each Underwriter as follows:
(a) To
furnish to you, without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference) and to
deliver to each of the Underwriters during the period mentioned in Section 6(e)
or
6(f)
below,
as many copies of the Time of Sale Prospectus, the Prospectus, any documents
incorporated therein by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared
by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably object.
(d) Not
to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to
file
thereunder.
(e) If
the
Time of Sale Prospectus is being used to solicit offers to buy the Securities
at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary
to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then
on
file, or if, in the opinion of counsel for the Underwriters, it is necessary
to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time
of
Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law.
(f) If,
during such period after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel
for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names
and addresses you will furnish to the Company) to which Securities may have
been
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in
the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with
applicable law.
(g) To
endeavor to qualify the Securities for offer and sale under the securities
or
Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To
make
generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
date
of this Agreement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to
the
performance of its obligations under this Agreement, including: (i)
the
fees, disbursements and expenses of the Company’s counsel and the Company’s
accountants in connection with the registration and delivery of the Securities
under the Securities Act and all other fees or expenses in connection with
the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Securities (within the time
required by Rule 456(b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii)
all
costs and expenses related to the transfer and delivery of the Securities to
the
Underwriters, including any transfer or other taxes payable thereon,
(iii)
the cost
of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state securities
laws
and all expenses in connection with the qualification of the Securities for
offer and sale under state securities laws as provided in Section 6(g)
hereof,
including filing fees and the reasonable fees and disbursements of counsel
for
the Underwriters in connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv)
all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Securities by the National Association of Securities Dealers,
Inc., (v)
any fees
charged by the rating agencies for the rating of the Securities, (vi)
the cost
of the preparation, issuance and delivery of the Securities, (vii)
the
costs and charges of any trustee, transfer agent, registrar or depositary,
(viii)
the
costs and expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of
any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (ix)
the
document production charges and expenses associated with printing this Agreement
and (x)
all
other costs and expenses incident to the performance of the obligations of
the
Company hereunder for which provision is not otherwise made in this Section.
It
is understood, however, that except as provided in this Section, Section 8
entitled
“Indemnity and Contribution,” and the last paragraph of Section 10
below,
the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, transfer taxes payable on resale of any of
the
Securities by them and any advertising expenses connected with any offers they
may make.
(j) If
the
third anniversary of the date hereof occurs before all the Securities have
been
sold by the Underwriters, prior to the third anniversary to file a new shelf
registration statement and to take any other action necessary to permit the
public offering of the Securities to continue without interruption; references
herein to the Registration Statement shall include the new registration
statement declared effective by the Commission;
(k) During
the period beginning on the date hereof and continuing to and including the
Closing Date, not to offer, sell, contract to sell or otherwise dispose of
any
debt securities of the Company or warrants to purchase or otherwise acquire
debt
securities of the Company substantially similar to the Securities (other than
(i)
the
Securities, (ii)
commercial paper issued in the ordinary course of business or (iii)
securities or warrants permitted with the prior written consent of the Manager
identified in Schedule
I
with the
authorization to release this lock-up on behalf of the
Underwriters).
(l) To
prepare a final term sheet relating to the offering of the Securities,
containing only information that describes the final terms of the Securities
or
the offering in a form consented to by the Managers, and to file such final
term
sheet within the period required by Rule 433(d)(5)(ii) under the Securities
Act
following the date the final terms have been established for the offering of
the
Securities.
7. Covenants
of the Underwriters.
Each
Underwriter severally covenants with the Company not to take any action that
would result in the Company being required to file with the Commission under
Rule 433(d) a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
8. Indemnity
and Contribution.
(a)
The
Company agrees to indemnify and hold harmless each Underwriter, each person,
if
any, who controls any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and each affiliate
of any Underwriter within the meaning of Rule 405 under the Securities Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by
any untrue statement or alleged untrue statement of a material fact contained
in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus as defined
in
Rule 433(h) under the Securities Act, any Company information that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act or the Prospectus or any amendment or supplement thereto, or caused by
any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement
and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished
to
the Company in writing by such Underwriter through you expressly for use in
the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(c) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 8(a)
or
8(b),
such
person (the “indemnified
party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”)
in
writing and the indemnifying party, upon request of the indemnified party,
shall
retain counsel reasonably satisfactory to the indemnified party to represent
the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to
such proceeding. In any such proceeding, any indemnified party 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 party unless (i)
the
indemnifying party and the indemnified party shall have mutually agreed to
the
retention of such counsel or (ii)
the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Manager authorized to appoint counsel under this
Section set forth in Schedule I
hereto,
in the case of parties indemnified pursuant to Section 8(a),
and by
the Company, in the case of parties indemnified pursuant to Section 8(b).
The
indemnifying party 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 party agrees
to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To
the
extent the indemnification provided for in Section 8(a)
or
Section 8(b)
is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party 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 hand from the offering
of the Securities or (ii)
if the
allocation provided by clause 8(d)(i)
above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i)
above
but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
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 hand in connection
with the offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters bear to the aggregate initial
public offering price of the Securities as set forth in the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or 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.
The Underwriters’ respective obligations to contribute pursuant to this
Section 8
are
several in proportion to the respective principal amounts of Securities they
have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8
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 Section 8(d).
The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 8(d)
shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any
damages 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 remedies
provided for in this Section 8
are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8
and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect regardless
of
(i)
any
termination of this Agreement, (ii)
any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii)
acceptance of and payment for any of the Securities.
9. Termination.
The
Underwriters may terminate this Agreement by notice given by you 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, or by, as the
case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii)
trading
of any securities of the Company shall have been suspended on any exchange
or in
any over-the-counter market, (iii)
a
material disruption in securities settlement, payment or clearance services
in
the United States shall have occurred, (iv)
any
moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities or (v)
there
shall have occurred any outbreak or escalation of hostilities, or any change
in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, singly or together with any other event specified in
this
clause (v),
makes
it, in your judgment, impracticable or inadvisable to proceed with the offer,
sale or delivery of the Securities on the terms and in the manner contemplated
in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness;
Defaulting Underwriters.
This
Agreement shall become effective upon the execution and delivery hereof by
the
parties hereto.
If,
on
the Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Securities that it has or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule II
bears to
the aggregate principal amount of Securities set forth opposite the names of
all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in
no event shall the principal amount of Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10
by an
amount in excess of one-ninth of such principal amount of Securities without
the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is
more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event
for
longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or
in
any other documents or arrangements may be effected. Any action taken under
this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of the Company to comply with the terms
or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement
or
the offering contemplated hereunder.
11. Entire
Agreement.
(a)
This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Securities, represents the entire agreement between
the
Company and the Underwriters with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the
offering, and the purchase and sale of the Securities.
(b) The
Company acknowledges that in connection with the offering of the Securities:
(i)
the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (ii)
the
Underwriters owe the Company only those duties and obligations set forth in
this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii)
the
Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it
may
have against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering of the Securities.
12. Counterparts.
This
Agreement may be signed in two or more counterparts, each of which shall be
an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
13. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
14. Headings.
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
15. Notices.
All
communications hereunder shall be in writing and effective only upon receipt
and
if to the Underwriters shall be delivered, mailed or sent to you at the address
set forth in Schedule I
hereto;
and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I
hereto.
************
Please
confirm your agreement by signing a copy of this Underwriting Agreement in
the
space set forth below.
|
Very
truly yours,
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Accepted
as of the date hereof
|
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED
BANC
OF AMERICA SECURITIES LLC
CALYON
SECURITIES (USA) INC.
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
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|
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Acting
severally on behalf of themselves and the several Underwriters named
in
Schedule II
hereto
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|
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By:
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED
|
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By:
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|
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Name:
|
|
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Title:
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SCHEDULE
I
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Managers:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
Banc
of America Securities LLC
Calyon
Securities (USA) Inc.
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
|
Manager
authorized to release the lock up under Section
6(k):
Manager
authorized to appoint counsel under Section
8(c):
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
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|
Indenture:
|
Indenture
dated as of September 23, 1999 between the Company and the Trustee,
as
supplemented by the First Supplemental Indenture, dated as of November
[__],
2006, between the Company and the Trustee
|
|
Trustee:
|
The
Bank of New York Trust Company, N.A.
|
|
Registration
Statement File No.:
|
Registration
Statement on Form S-3 (No. 333-84931)
|
|
Time
of Sale Prospectus
|
· Prospectus
dated October [__],
2006 relating to the Shelf Securities
· The
preliminary prospectus supplement dated October [__],
2006 relating to the Securities
· Free
writing prospectus containing a description of terms that does not
reflect
final terms, if the Time of Sale Prospectus does not include a final
term
sheet
· Term
Sheet dated October [__], 2006
· [Identify
all other free writing prospectuses filed by the Company under Rule
433(d)
of the Securities Act]
· [orally
communicated pricing information to be included on Schedule I if
a final
term sheet is not used] [to be discussed]
|
|
Securities
to be purchased:
|
[__]%
Senior Notes due 2016
|
|
Aggregate
Principal Amount:
|
$150,000,000
|
|
Purchase
Price:
|
[__]%
of the principal amount of the Securities, plus accrued interest,
if any,
from November [__],
2006
|
|
Maturity:
|
November
[__],
2016
|
|
Interest
Rate:
|
[__]%
per annum, accruing from November [__],
2006
|
|
Interest
Payment Dates:
|
May
[__]
and November [__],
commencing May [__],
2007
|
|
Closing
Date and Time:
|
November
[__],
2006 __:__ a.m., E.S.T.
|
|
Closing
Location:
|
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Address
for Notices to Underwriters:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Transactional Management Group
with
a copy to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇
|
|
Address
for Notices to the Company:
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
General Counsel
with
a copy to:
Miller,
Canfield, Paddock and Stone, P.L.C.
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SCHEDULE
II
|
Underwriter
|
Principal
Amount of Securities To Be Purchased
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
|
$
[________]
|
|
Banc
of America Securities LLC
|
[________]
|
|
Calyon
Securities (USA) Inc.
|
[________]
|
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
[________]
|
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Total
|
$150,000,000
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