NORDSTROM, INC. $500,000,000 4.75% Notes due 2020 UNDERWRITING AGREEMENT April 20, 2010 Goldman, Sachs & Co. Morgan Stanley & Co. Incorporated
Exhibit 1.1
EXECUTION COPY
NORDSTROM, INC.
$500,000,000 4.75% Notes due 2020
April 20, 2010
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
April 20, 2010
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
As Representatives of the several Underwriters
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
As Representatives of the several Underwriters
c/o GOLDMAN, SACHS & CO.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. Nordstrom, Inc., a Washington corporation (the “Company”), proposes to
issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting
severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000
aggregate principal amount of the Company’s 4.75% Notes due 2020 (the “Notes”). ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated have agreed to act as representatives of the
several Underwriters (in such capacity, the “Representatives”) in connection with the
offering and sale of the Notes.
The Notes will be issued pursuant to an indenture dated December 3, 2007 (the “Base
Indenture”), between the Company and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the
“Trustee”). Certain terms of the Notes will be established pursuant to a resolution of the
board of directors of the Company and set forth in an officers’ certificate (the “Supplemental
Terms,” and together with the Base Indenture, the “Indenture”). The Notes will be
issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company
(the “Depositary”), pursuant to a Letter of Representations, dated on or before the Closing
Date (the “DTC Agreement”), among the Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-147664), which contains a
base prospectus (the “Base Prospectus”), to be used in connection with the public offering
and sale of debt securities, including the Notes, and other securities of the Company under the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act. Such registration statement, including the
financial statements, exhibits and schedules thereto, in the form in which it became effective
under the Securities Act, including any required information deemed to be a part thereof at the
time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“Registration Statement.” The term “Prospectus” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant
to Rule 424(b) after the date
and time that this Agreement is executed (the “Execution Time”) by the parties hereto.
The term “Preliminary Prospectus” shall mean any preliminary prospectus supplement
relating to the Notes, together with the Base Prospectus, that is first filed with the Commission
pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are
deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act prior to 2:47 p.m. (Eastern Time) on April 20, 2010 (the “Initial Sale Time”). All
references in this Agreement to the Registration Statement, the Preliminary Prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“▇▇▇▇▇”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1. Representations and Warranties of the Company
The Company hereby represents, warrants and covenants to each Underwriter as of the date
hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “Representation
Date”), as follows:
a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission,
and any request on the part of the Commission for additional information has been complied with.
In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any amendments
thereto (i) complied and will comply in all material respects with the requirements
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of the Securities Act and the Trust Indenture Act, and (ii) 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 to make the statements therein not misleading. At the date of the Prospectus and at
the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions from the Registration Statement or
any post-effective amendment or the Prospectus or any amendments or supplements thereto made in
reliance upon and in conformity with information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC,
complied in all material respects with the Securities Act, and the Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will,
at the time of such delivery, be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus dated ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the issuer free writing prospectuses as defined in Rule 433
of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in
Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain 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 under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of
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complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer
relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as
of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405
of the Securities Act. The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405 of the Securities Act, that automatically became effective not more than
three years prior to the Execution Time; the Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.
e) Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter through the Representatives consists of the information described as
such in Section 8 hereof.
g) Distribution of Offering Material by the Company. The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of the Underwriters’
distribution of the Notes, any offering material in connection with the offering and sale of the
Notes other than (i) the Preliminary Prospectus, (ii) the Prospectus, (iii) any Issuer Free Writing
Prospectus reviewed and consented to by the Representatives and included in Annex I hereto, (iv)
the Registration Statement or (v) any electronic road show or other written communications reviewed
and consented to by the Representatives (collectively, “Company Additional Written
Communication”). Each such Company Additional Written Communication, when taken together with
the Disclosure Package, did not, and at the Closing Date will not,
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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 this representation, warranty and agreement shall not apply to
statements in or omissions from each such Company Additional Written Communication made in reliance
upon and in conformity with information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use in any Company Additional Written Communication, it
being understood and agreed that the only such information furnished by any Underwriter through the
Representatives consists of the information described as such in Section 8 hereof.
h) No Applicable Registration or Other Similar Rights. There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
j) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed
by the Company and, when authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles, and will be entitled to the benefits of the Indenture.
l) Description of the Notes and the Indenture. The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
m) Accuracy of Statements in Prospectus. The statements in each of the Preliminary Prospectus
and the Prospectus under the captions “Description of Notes” and “Description of Debt Securities”,
in each case insofar as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present and summarize, in all material respects, the
matters referred to therein.
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n) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree and (ii) there has been no
material adverse change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the earnings, management,
business, properties, results of operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Company and its subsidiaries, considered as one entity
(any such change is called a “Material Adverse Change”).
o) Independent Accountants. Deloitte & Touche LLP, who have expressed their opinion with
respect to the Company’s audited financial statements for the fiscal years ended January 30, 2010,
January 31, 2009 and February 2, 2008 incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus, are independent public accountants with respect to the
Company as required by the Securities Act and the Exchange Act and are an independent registered
public accounting firm with the Public Company Accounting Oversight Board.
p) Preparation of the Financial Statements. The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements comply as to form with the accounting
requirements of the Securities Act and have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes thereto. No other
financial statements are required to be included in the Registration Statement. The selected
financial data and the summary financial information included in the Preliminary Prospectus and the
Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the Registration Statement,
the Preliminary Prospectus and the Prospectus. In addition, if any pro forma financial
statements of the Company and its subsidiaries and the related notes thereto is included in the
Registration Statement, the Preliminary Prospectus and the Prospectus, such pro forma financial
statements and related notes present fairly the information shown therein, have been prepared in
accordance with the Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
q) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company
and its significant subsidiaries (as defined in Rule 1-02(10) of Regulation S-X, the
“Significant Subsidiaries”) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own or lease, as the case may be, and operate its properties and
to conduct its business as described in the Disclosure Package and the Prospectus and, in the case
of the Company, to enter into and perform its obligations under this Agreement. Each of the
Company
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and each subsidiary is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued and outstanding shares of
capital stock of each subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim. The Company does not have any
subsidiary not listed on Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year
ended January 30, 2010 which is required to be so listed.
r) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the Prospectus under the
caption “Capitalization” (other than for subsequent issuances, if any, pursuant to employee benefit
plans described in the Disclosure Package and the Prospectus or upon exercise of outstanding
options described in the Disclosure Package and the Prospectus, as the case may be).
s) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
Neither the Company nor any of its Significant Subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time or both, would be in default) (“Default”) under
its articles of incorporation, charter or by-laws, (ii) in Default under any indenture, mortgage,
loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its subsidiaries 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 of its subsidiaries is subject (each, an “Existing Instrument”) or (iii) in
violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, as applicable,
except, with respect to clauses (ii) and (iii) only, for such Defaults or violations as would not,
individually or in the aggregate result in a Material Adverse Change. The Company’s execution,
delivery and performance of this Agreement and consummation of the transactions contemplated
hereby, by the Disclosure Package and by the Prospectus (i) have been duly authorized by all
necessary corporate action and will not result in any Default under the articles of incorporation,
charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering Event (as defined below) 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, or require the consent of any other party to, any
Existing Instrument, and (iii) will not result in any violation of any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of its or their properties.
No consent, approval, authorization or other order of, or registration or filing with, any court
or other governmental or regulatory authority or agency is required for the Company’s execution,
delivery and performance of this Agreement or consummation of the transactions contemplated hereby,
by the Disclosure Package or by the
Prospectus, except such as have been obtained or made by the Company and are in full force and
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effect under the Securities Act, applicable state securities or blue sky laws and from the
Financial Industry Regulatory Authority (the “FINRA”). As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of
notice or lapse of time or both would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) issued by the Company, the right to
require the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
t) No Material Actions or Proceedings. Except as disclosed in the Prospectus and the
Disclosure Package, there are no legal or governmental actions, suits or proceedings pending or, to
the best of the Company’s knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned
or leased by, the Company or any of its subsidiaries or (iii) relating to environmental or
discrimination matters related to the Company or its subsidiaries, where any such action, suit or
proceeding, if determined adversely, could, individually or in the aggregate, result in a Material
Adverse Change or adversely affect the consummation of the transactions contemplated by this
Agreement.
u) Labor Matters. No material dispute with the employees of the Company or any of its
subsidiaries exists, and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers,
that could, individually or in the aggregate, result in a Material Adverse Change.
v) Intellectual Property Rights. Except as set forth in the Disclosure Package and the
Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or possess a valid
right to use all patents, trademarks, service marks, trade names, copyrights, patentable
inventions, trade secret, know-how and other intellectual property (collectively, the
“Intellectual Property”) used by the Company or its subsidiaries in, and material to, the
conduct of the Company’s or its subsidiaries’ business as now conducted or as proposed in the
Disclosure Package and the Prospectus to be conducted. Except as set forth in the Disclosure
Package and the Prospectus, there is no material infringement by third parties of any of the
Company’s Intellectual Property and there are no material legal or governmental actions, suits,
proceedings or claims pending or, to the Company’s knowledge, threatened, against the Company (i)
challenging the Company’s rights in or to any Intellectual Property, (ii) challenging the validity
or scope of any Intellectual Property owned by the Company, or (iii) alleging that the operation of
the Company’s business as now conducted infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of a third party, and the Company is unaware of
any facts which would form a reasonable basis for any such claim.
w) All Necessary Permits, etc. The Company and each Significant Subsidiary possess such valid
and current certificates, authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor any Significant
Subsidiary has received any notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization, permit, license,
approval, consent or other authorization which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, could result in a Material Adverse Change.
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x) Title to Properties. Except as otherwise disclosed in the Disclosure Package and the
Prospectus, the Company and each of its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial statements referred to in Section 1(p)
above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or such subsidiary.
y) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings, except where a
default to make such filings or payments would not result in a Material Adverse Change. The
Company has made appropriate provisions in the applicable financial statements referred to in
Section 1(p) above in respect of all federal, state, local and foreign income and franchise taxes
for all current or prior periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
z) Company Not an Investment Company. The Company is not, and after receipt of payment for
the Notes and the application of the proceeds thereof as contemplated under the caption “Use of
Proceeds” in the Preliminary Prospectus and the Prospectus will not be, required to register as an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
aa) Insurance. The Company and its subsidiaries are insured by recognized, financially sound
and reputable institutions with policies in such amounts and with such deductibles and covering
such risks as are generally deemed adequate and customary for their businesses including, but not
limited to, policies covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes. All policies
of insurance insuring the Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or defending under a
reservation of rights clause; and neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for. The Company has no reason to believe that it or any
subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change.
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bb) No Price Stabilization or Manipulation. The Company has not taken and will not take,
directly or indirectly, any action designed to or that would be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes.
cc) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or any subsidiary or any other person required to be described
in the Preliminary Prospectus or the Prospectus that have not been described as required.
dd) No Unlawful Contributions or Other Payments. None of the Company, any of its subsidiaries
or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the FCPA, including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
ee) Compliance with Environmental Laws. 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,
result in a Material Adverse Change. 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, result in a Material Adverse Change.
ff) Periodic Review of Costs of Environmental Compliance. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation,
10
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). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that such associated costs
and liabilities would not, individually or in the aggregate, reasonably expected to result in a
Material Adverse Change.
gg) ERISA Compliance. The Company and its subsidiaries and any “employee benefit plan” (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in
compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to
the Company or a subsidiary, any member of any group of organizations described in Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the “Internal Revenue
Code”), of which the Company or such subsidiary is a member. No “reportable event” (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit
plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan,”
(ii) Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the
Internal Revenue Code with respect to the excise tax imposed thereunder. Each “employee benefit
plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service and nothing has occurred, whether
by action or failure to act, which is reasonably likely to cause disqualification of any such
employee benefit plan under Section 401(a) of the Internal Revenue Code.
hh) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. There is and has been no failure on the part of the Company
and 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.
ii) Company’s Accounting System. The Company and its subsidiaries maintain effective internal
control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act.
jj) Internal Controls and Procedures. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed
in accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or specific authorization; and (D) the
11
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
kk) No Material Weakness in Internal Controls. Except as disclosed in the Disclosure Package
and the Prospectus or in any document incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting.
ll) Accuracy of Exhibits. There are no franchises, contracts or documents which are required
to be described in the Registration Statement, the Disclosure Package, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits to the Registration
Statement which have not been so described and filed as required
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Notes.
a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company the aggregate principal amount of Notes set forth opposite their names on Schedule A at
a purchase price of 98.915% of the principal amount of the Notes, payable on the Closing Date.
b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Shearman & Sterling LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed to by the Company
and the Representatives) at 9:00 a.m., New York City time, on April 23, 2010 or such other time and
date as the Underwriters and the Company shall mutually agree (the time and date of such closing
are called the “Closing Date”).
c) Public Offering of the Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased
12
by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Notes at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Notes shall be in such
denominations and registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as the
Representatives may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
Section 3. Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to ascertain promptly whether the Preliminary
Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file such document. The Company
will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus
Delivery Period”), the Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement, or any amendment, supplement or
revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the
Exchange Act or otherwise, will furnish the Representatives with copies of any such documents
13
a
reasonable amount of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representatives or counsel for the Underwriters shall
reasonably object.
c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and (2) promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the
Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the
Company will furnish to the Underwriters, without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
14
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and
the Prospectus.
h) Depositary. The Company will cooperate with the Underwriters and use its best efforts to
permit the Notes to be eligible for clearance and settlement through the facilities of the
Depositary.
i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall
file, on a timely basis, with the Commission and the New York Stock Exchange all reports and
documents required to be filed under the Exchange Act.
j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any debt securities of the
Company similar to the Notes or securities exchangeable for or convertible into debt securities
similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k) Final Term Sheet. The Company will prepare a final term sheet containing only a
description of the Notes, in a form approved by the Underwriters and attached as Exhibit B hereto,
and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time
required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet
is an Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted Free Writing Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the
15
Securities
Act) required to be filed by the Company with the Commission or retained by the Company under Rule
433 of the Securities Act; provided that the prior written consent of the Representatives shall be
deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to
this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the
Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use by any Underwriter of a free writing
prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b)
contains only (i) information describing the preliminary terms of the Notes or their offering, (ii)
information permitted by Rule 134 under the Securities Act or (iii) information that describes the
final terms of the Notes or their offering and that is not inconsistent with the Final Term Sheet
of the Company contemplated in Section 3(k).
m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the “Renewal Deadline”) of the initial effective date of the Registration Statement, any
of the Notes remain unsold by the Underwriters, the Company will prior to the Renewal Deadline
file, if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is
no longer eligible to file an automatic shelf registration statement, the Company will prior to the
Renewal Deadline, if it has not already done so, file a new shelf registration statement relating
to the Notes, in a form satisfactory to the Representatives, and will use its best efforts to cause
such registration statement to be declared effective within 60 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to permit the public offering and
sale of the Notes to continue as contemplated in the expired registration statement relating to the
Notes. References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
n) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating to the Notes, in a
form satisfactory to the Representatives, (iii) use its best efforts to cause such registration
statement of post-effective amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for
which the Company has otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or post-effective amendment, as the case
may be.
16
o) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the
Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the
Securities Act.
p) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will comply with all applicable securities
and other laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and
use its best efforts to cause the Company’s directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without limitation, the provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
q) No Manipulation of Price. The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be expected to
constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Notes, (iii) all fees and expenses of the Company’s counsel, independent public or certified public
accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and certificates of experts), each
Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments
and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v)
all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky
Survey” or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by
the FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with
the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of
counsel) of the Company in connection with approval of the Notes by the Depositary for “book-entry”
transfer, (x) all other fees, costs and expenses referred
to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and
expenses incurred in connection with the performance of its obligations hereunder for which
provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections
6, 8 and 9
17
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
a) Effectiveness of Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective
amendment providing such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A).
b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall have received
from Deloitte & Touche LLP, independent registered public accountants for the Company, a letter
dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the
Representatives with respect to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from Deloitte & Touche LLP, independent public or certified public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b)
of this Section 5, except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the Closing Date.
d) No Objection. If the Registration Statement and/or the offering of the Notes has been
filed with the FINRA for review, the FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
e) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (b) of this Section 5 which is, in the sole judgment of the
18
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) 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 any
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.
f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇ PC, counsel for the Company, dated as of such Closing
Date, in form of which is attached as Exhibit A.
g) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the favorable opinion of Shearman & Sterling LLP, counsel for the Underwriters, dated
as of such Closing Date, with respect to such matters as may be reasonably requested by the
Underwriters.
h) Officers’ Certificate. On the Closing Date, the Representative shall have received a
written certificate executed by the President or an Executive Vice President of the Company and the
Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date,
to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) the representations, warranties and covenants of the Company set forth in
Section 1 of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
i) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale
of the Notes as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements, herein
contained.
19
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5, 10 or 11, or if the sale to the Underwriters of the
Notes on the Closing Date is not consummated because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the Notes,
including but not limited to fees and disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors, officers, employees and agents, and each person, if
any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or
such affiliate, director, officer, employee, agent or controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such settlement is effected
with the written consent of the Company), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement,
or any amendment thereto, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any
untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, Company Additional Written Communication, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each Underwriter and
each such affiliate, director, officer, employee, agent and controlling person for any and all
expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives)
as such expenses are reasonably incurred by such Underwriter or such affiliate, director, officer,
employee, agent or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged untrue statement
or
20
omission or alleged omission made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, any Company Additional Written
Communication, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such Underwriter), insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing Prospectus, any Company
Additional Written Communication, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Issuer Free Writing Prospectus, any Company Additional Written Communication, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company, or any such director,
officer or controlling person for any legal and other expense reasonably incurred by the Company,
or any such director, officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, any Company Additional Written Communication, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) are the statements set forth in the seventh and
eighth paragraphs under the caption “Underwriting” in the Preliminary Prospectus and the
Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but
the omission so to notify the indemnifying party will not relieve it from any liability which
it
21
may have to any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified
party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, such indemnified party shall have the right to employ its own counsel in
any such action and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party, unless: (i) the employment of such
counsel has been specifically authorized in writing by the indemnifying party; (ii) the
indemnifying party has failed promptly to assume the defense and employ counsel reasonably
satisfactory to the indemnified party; or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying party or any affiliate
of the indemnifying party, and such indemnified party shall have reasonably concluded that either
(x) there may be one or more legal defenses available to it which are different from or additional
to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a
conflict may exist between such indemnified party and the indemnifying party or such affiliate of
the indemnifying party (it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to a single firm of
local counsel) for all such indemnified parties, which firm shall be designated in writing by the
Representatives and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence, in which case the
reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 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 against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
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 such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a party and
22
indemnity was or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action, suit or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (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 Notes pursuant to this Agreement or (ii) if the allocation provided by clause (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 (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses)
received by the Company, and the total underwriting discount received by the Underwriters, in each
case as set forth on the front cover page of the Prospectus bear to the aggregate initial public
offering price of the Notes as set forth on such cover. The relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company, on the
one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. 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.
23
The Underwriters’ obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each affiliate, director,
officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company with the
meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as
the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal
amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate
principal amount of such Notes with respect to which such default occurs exceeds 10% of the
aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Notes are not made within 48 hours
after such default, this Agreement shall terminate without liability of any party to any other
party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and
shall survive such termination. In any such case, either the Representatives 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, to the Registration Statement, any Issuer Free Writing
Prospectus, any Company Additional Written Communication, the Preliminary Prospectus or the
Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by
the Commission or the New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market, the New York Stock Exchange or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the Commission or the FINRA; (ii) a general
banking moratorium shall have been declared by any of federal or New York authorities; (iii)
24
there shall have occurred any outbreak or escalation of national or international hostilities or
any crisis or calamity involving the United States, or any change in the United States or
international financial markets, or any substantial change or development involving a prospective
substantial change in United States’ or international political, financial or economic conditions,
as in the judgment of the Representatives is material and adverse and makes it impracticable or
inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package
or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the
Representatives there shall have occurred any Material Adverse Change; or (v) there shall have
occurred a material disruption in commercial banking or securities settlement or clearance
services. Any termination pursuant to this Section 11 shall be without liability of any party to
any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections
4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
Section 12. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, shareholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Company and that
the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
Section 13. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will
remain operative and in full force and effect, regardless of any (A) investigation, or statement as
to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriter, the Company, the officers or employees
25
of the Company, or any person controlling the Company, as the case may be or (B) acceptance of the
Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes
sold hereunder and any termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Registration Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Registration Department
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Investment Banking Division
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Investment Banking Division
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to the Company:
Nordstrom, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ Sari
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ Sari
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇ PC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
26
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the affiliates, directors, officers, employees, agents and controlling persons
referred to in Sections 8 and 9, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term “successors” shall not include any purchaser
of the Notes as such from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
The Company acknowledges that in accordance with the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to
obtain, verify and record information that identifies their respective clients, including
the Company, which information may include the name and address of their respective clients,
as well as other information that will allow the Underwriters to properly identify their respective
clients.
27
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, NORDSTROM, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. Sari | |||
| Name: | ▇▇▇▇▇▇ ▇. Sari | |||
| Title: | Executive Vice President, General Counsel and Corporate Secretary |
|||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting as Representatives of the several Underwriters
named in the attached Schedule A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting as Representatives of the several Underwriters
named in the attached Schedule A
| By: | ▇▇▇▇▇▇▇, Sachs & Co. | |||
| By: | /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | |||
| (▇▇▇▇▇▇▇, Sachs & Co.) | ||||
| By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting as Representatives of the several Underwriters
named in the attached Schedule A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting as Representatives of the several Underwriters
named in the attached Schedule A
| By: | ▇▇▇▇▇▇▇, Sachs & Co. | |||
| By: | ||||
| By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | |||
| By: | /s/ Yurij Slyz | |||
| Name: | Yurij Slyz | |||
| Title: | Executive Director | |||
SCHEDULE A
| Aggregate | ||||
| Principal Amount | ||||
| of Notes to be | ||||
| Underwriters | Purchased | |||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
$ | 150,000,000 | ||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
150,000,000 | |||
Banc of America Securities LLC |
40,000,000 | |||
RBS Securities Inc. |
40,000,000 | |||
U.S. Bancorp Investments, Inc. |
40,000,000 | |||
▇▇▇▇▇ Fargo Securities, LLC |
40,000,000 | |||
Fifth Third Securities, Inc. |
20,000,000 | |||
Loop Capital Markets LLC |
20,000,000 | |||
Total |
$ | 500,000,000 | ||
Schedule-A
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated April 20, 2010
Annex-I
EXHIBIT A
[Form of Opinion of Issuer’s Counsel]
(i) The Company has been duly incorporated and is validly existing and authorized to conduct
business as a corporation under the laws of the jurisdiction of its incorporation and is otherwise
authorized to conduct business under the laws of Alaska, Arizona, California, Colorado,
Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania,
Rhode Island, Texas, Utah, Virginia and Washington, and has corporate power and authority to own or
lease, as the case may be, and operate its properties and to conduct its business as described in
the Disclosure Package and the Prospectus and to enter into and perform its obligations under this
Agreement;
(ii) Based solely on the OTS Certificate, Nordstrom fsb is duly chartered under the laws of
the United States to conduct business as a federal savings bank and its charter is in full force
and effect. Based solely on the Delaware Certificate, Nordstrom Credit Card Receivables, LLC is
duly formed and is validly existing, in good standing and authorized to conduct its business under
the laws of the jurisdiction of its incorporation or formation. Based solely on the Colorado
Certificates, each of N2HC, Inc. and Nordstrom Credit, Inc. are validly existing, in good standing
and authorized to conduct business under the laws of the jurisdiction of their incorporation or
formation;
(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 the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(v) The Securities are in the form contemplated by the Indenture, have been duly authorized
and executed and, when authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price as specified in the Agreement, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms, and will be
entitled to the benefits of the Indenture.
(vi) The Registration Statement is an “automatic shelf registration statement,” as defined in
Rule 405 of the Securities Act, that automatically became effective not more than three years prior
to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the automatic shelf registration
form.
(vii) As of their respective effective or issue dates (including without limitation each
deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the
Securities Act), each of (a) the Registration Statement, including without limitation the Rule
Exhibit A-1
430B Information; (b) the Prospectus, excluding the documents incorporated by reference therein;
and (c) each amendment or supplement to the Registration Statement and the Prospectus, in each case
excluding the documents incorporated by reference therein, other than the financial statements and
supporting schedules included therein or omitted therefrom and the T-1, as to which counsel need
express no opinion, complied as to form in all material respects with the requirements of the
Securities Act.
(viii) The documents incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus at the time they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act.
(ix) The statements in each of the Preliminary Prospectus and the Prospectus under the
captions “Description of Notes,” “Description of Debt Securities” and “Certain U.S. Federal Income
Tax Considerations,” in each case insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present and summarize, in all
material respects, the matters referred to therein.
(x) The Company’s execution, delivery and performance of this Agreement and consummation of
the transactions contemplated thereby, by the Disclosure Package and by the Prospectus (i) have
been duly authorized by all necessary corporate action and will not violate the Articles of
Incorporation or Bylaws of the Company; (ii) will not result in a breach of or default under any
obligation of the Company under, or result in or require the creation of any lien upon any property
of the Company pursuant to the terms of any document or contract listed on the exhibit index to the
Company’s Annual Report on Form 10-K for the year ended January 30, 2010; and (iii) will not result
in any violation of any United States or Washington statute or law, rule or regulation applicable
to the Company or any of its Significant Subsidiaries, or any order, rule or regulation identified
to Counsel by the Company as having been issued by any court, governmental agency or body having
jurisdiction over the Company or any of its material properties. No consent, approval,
authorization or other order of, or registration or filing with, any court or other governmental or
regulatory authority or agency is required for the Company’s execution, delivery and performance of
this Agreement or consummation of the transactions contemplated hereby, by the Disclosure Package
or by the Prospectus, except such as have been obtained or made by the Company and are in full
force and effect under the Securities Act.
(xi) The Company is not, and after receipt of payment for the Securities and the application
of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will not be, required to register as an “investment company” within
the meaning of the Investment Company Act.
(xii) To the best of the counsel’s knowledge, except as may be disclosed in the Registration
Statement, the Preliminary Prospectus and the Prospectus, there are no legal or governmental
actions, suits or proceedings pending or threatened (i) against or affecting the Company or its
subsidiaries, (ii) which has as the subject thereof any officer or director (in his or her official
capacity) of, or property owned or leased by, the Company or its subsidiaries or (iii) relating to
environmental or discrimination matters related to the Company or its subsidiaries, in each case
where any such action, suit or proceeding, if determined adversely, could, individually
Exhibit A-2
or in the aggregate, reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by the Agreement.
Nothing has come to the counsel’s attention that would lead them to believe that (i) the
Registration Statement, including the information required under Rule 430B of the Securities Act
(except for financial statements and schedules and other financial data included or incorporated
by reference therein or omitted therefrom and the Form T-1, as to which counsel makes no
statement), as of its original effective date and at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the Securities Act, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Disclosure Package (except for financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom, as to which such counsel makes no statement), as of the Initial Sale Time, as
defined in the Agreement, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of circumstances
under which they were made, not misleading or (iii) the Prospectus or any amendment or supplement
thereto (except for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which such counsel makes no
statement), as of the date of the Prospectus, as of the date of any such amended or supplemented
prospectus or prior to the date of this letter or as of the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading.
Exhibit A-3
EXHIBIT B
NORDSTROM, INC.
Final Term Sheet
April 20, 2010
Final Term Sheet
April 20, 2010
Issuer: |
Nordstrom, Inc. | |
Size: |
$500,000,000 | |
Maturity: |
May 1, 2020 | |
Coupon (Interest Rate): |
4.750% | |
Yield to Maturity: |
4.805% | |
Spread to Benchmark Treasury: |
+ 100 basis points | |
Benchmark Treasury: |
3.625% due February 20, 2020 | |
Benchmark Treasury Yield: |
98-17; 3.805% | |
Interest Payment Dates: |
November 1 and May 1, commencing November 1, 2010 | |
Redemption Provision: |
In whole or in part, at any time, at the Issuer’s option, at the greater of (i) 100% of principal amount or (ii) discounted present value at the Treasury Rate plus 15 basis points | |
Price to Public: |
99.565% | |
Settlement Date: |
April 23, 2010 | |
CUSIP: |
655664 AN0 | |
Joint Book-Running Managers: |
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | ||
Senior Co-Managers: |
Banc of America Securities LLC | |
| RBS Securities Inc. | ||
| U.S. Bancorp Investments, Inc. | ||
| ▇▇▇▇▇ Fargo Securities, LLC | ||
Co-Managers: |
Fifth Third Securities, Inc. | |
| Loop Capital Markets LLC |
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, you may obtain a copy of
the prospectus by contacting ▇▇▇▇▇▇▇, Sachs & Co. at ▇-▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇▇▇▇▇▇▇▇-▇▇@▇▇.▇▇▇▇▇.▇▇.▇▇▇, or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at 1-866-718-1649.
Exhibit B-1