Underwriting Agreement – Unisys Corp.
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UNISYS CORPORATION |
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6.25% Mandatory Convertible Preferred Stock |
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UNDERWRITING AGREEMENT |
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February 22, 2011 |
Goldman, Sachs & Co., Citigroup Global Markets Inc.
As representatives (the “Representatives“) of the several Underwriters
named in Schedule I hereto,
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Goldman, Sachs & Co., Citigroup Global Markets Inc., |
1. Introductory. Unisys Corporation, a Delaware corporation (the
“Company“), proposes, subject to the terms and conditions stated herein,
to issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters“) an aggregate of 2,250,000 shares of the Company153s 6.25%
mandatory convertible preferred stock, par value $1.00 per share, registered
under the registration statement referred to in Section 2(a) (the
“Registered Securities“) and, at the election of the Underwriters, up to
337,500 additional shares of the Company153s 6.25% mandatory convertible preferred
stock, par value $1.00 per share (the “Option Securities“).
The Registered Securities and the Option Securities are hereinafter referred
to collectively as the “Securities.” The offering of the Securities is
referred to herein as the “Offering.”
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (the “Initial Registration
Statement“), including a form of base prospectus, for the registration
of the Registered Securities under the Securities Act of 1933, as amended (the
“Act“), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations promulgated under the Act (the “Rules
and Regulations“), has been prepared by the Company and filed with, and has
been declared effective by, the Securities and Exchange Commission (the
“Commission“). The Initial Registration Statement, as amended and
supplemented, including all information, if any, deemed to be a part thereof at
the time of effectiveness pursuant to Rule 430A, 430B or 430C of the
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Rules and Regulations, is referred to herein as the “Registration
Statement.” No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose or pursuant to
Section 8A of the Act against the Company or related to the offering and sale of
the Securities has been initiated or, to the Company153s knowledge, threatened by
the Commission. The Company will file the Prospectus (as defined below) with the
Commission pursuant to Rule 424(b) of the Rules and Regulations. The base
prospectus contained in the Initial Registration Statement, at the time such
registration statement was declared effective, as supplemented by the final
prospectus supplement relating to the Offering, in the form in which it is to be
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations,
is hereinafter referred to as the “Prospectus,” except that if any
revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering of
Securities which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term
“Prospectus” shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. Any preliminary prospectus supplement (and the
related base prospectus) relating to the Offering filed with the Commission
pursuant to Rule 424 of the Rules and Regulations is hereafter referred to as
the “Preliminary Prospectus.” Any “issuer free writing prospectus” (as
defined in Rule 433 under the Act) relating to the Securities is hereafter
referred to as an “Issuer Free Writing Prospectus;” and the Pricing
Prospectus (as defined below), as supplemented by the Issuer Free Writing
Prospectuses, if any, attached and listed in Schedule II(A), taken together, are
hereafter referred to collectively as the “Pricing Disclosure
Package.” Any reference herein to the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package shall
be deemed to refer to and include the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3, which were
filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act“), on or before the effective date of such Registration Statement, the
date of such Preliminary Prospectus or Prospectus or the Applicable Time, as
applicable; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Prospectus, any
Preliminary Prospectus or the Pricing Disclosure Package shall be deemed to
refer to and include (i) the filing of any document under the Exchange Act after
the effective date of such Registration Statement, the date of such Preliminary
Prospectus or Prospectus or after the Applicable Time, as the case may be, that
is incorporated therein by reference and (ii) any such document so filed. As
used herein, the “Applicable Time” is 7:00 a.m. (Eastern Time) on the
business day next succeeding the date of this Agreement and “Pricing
Prospectus” means the most recent Preliminary Prospectus, as amended or
supplemented immediately prior to the Applicable Time.
(b) The Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Rules and
Regulations, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; the Pricing Disclosure Package, as of the Applicable Time,
did 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; and each Issuer
Free Writing Prospectus listed on Schedule II hereto does not conflict with the
information contained in the Registration Statement, the Pricing Prospectus
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or the Prospectus, and each such Issuer Free Writing Prospectus, when taken
together with the Pricing Disclosure Package as of the Applicable Time, did 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; provided,
however, that in each case the foregoing representation and warranty does
not apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use therein.
(c) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will
conform, in all material respects, to the requirements of the Act and the Rules
and Regulations; and the Registration Statement does not and will not, as of the
applicable effective date as to each part of the Registration Statement and as
of the Closing Date (as defined in Section 4 of this Agreement), 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;
and the Prospectus will not, as of its date, the date of any amendment or
supplement thereto and as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that in
each case the foregoing representation and warranty does not apply to statements
in or omissions from any of such documents based upon written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Company has complied in all material respects with the requirements
of Rule 433 under the Act with respect to each Issuer Free Writing Prospectus
including, without limitation, all prospectus delivery, filing, record retention
and legending requirements applicable to any such Issuer Free Writing
Prospectus. The Company has not (i) distributed any “written communication” (as
defined in Rule 405 under the Act) in connection with the Offering or (ii)
filed, referred to, approved, used or authorized the use of any “free writing
prospectus” as defined in Rule 405 under the Act with respect to the offering of
Securities, except in each case for the Pricing Prospectus, the Prospectus, and
any Issuer Free Writing Prospectus set forth on Schedule II hereto, any document
not constituting a prospectus pursuant to Section 2(a)(10)(a) of
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the Act or Rule 134 under the Act or any other “written communication” (as
defined in Rule 405 under the Act) approved in writing in advance by the
Representative.
(f) The Company was not an “ineligible issuer” (as defined in Rule 405 under
the Act ) as of the eligibility determination date for purposes of Rules 164 and
433 under the Act with respect to the offering of the Securities.
(g) Subsequent to the respective dates as of which information is given in
the Pricing Prospectus, except as disclosed in the Pricing Disclosure Package,
(i) there has not been any material change in the capital stock or long-term
debt of the Company or its subsidiaries, (ii) the Company and its subsidiaries
taken as a whole have not sustained any material loss or material interference
with their business or properties from fire, explosion, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and (iii) there has not
been any material adverse change, or any development that would reasonably be
expected to result in a material adverse change, whether or not arising from
transactions in the ordinary course of business, in or affecting the business,
financial condition, results of operations or stockholder153s equity of the
Company and its subsidiaries, taken as a whole. Since the date of the latest
balance sheet included in the Registration Statement and the Pricing Prospectus,
neither the Company nor any of its subsidiaries has incurred or undertaken any
liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions, including
any acquisition or disposition of any business or asset, which are material to
the Company and its subsidiaries, taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Pricing Disclosure
Package.
(h) The Company has the authorized capitalization set forth in the Pricing
Disclosure Package. All of the issued and outstanding shares of capital stock of
the Company are fully paid and non-assessable and have been duly and validly
authorized and issued. All of the issued shares of capital stock of or other
ownership interests in each subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable. All of the issued shares of
capital stock or other ownership interests (in the case of the Company153s
wholly-owned subsidiaries) or all of such capital stock or other ownership
interests that the Company owns (in the case of less than wholly-owned
subsidiaries) are owned directly or indirectly by the Company, in each case free
and clear of any lien, charge, mortgage, pledge, security interest, claim,
equity, trust or other encumbrance, preferential arrangement, defect or
restriction of any kind whatsoever, other than (i) pursuant to the Company153s
Junior Lien Pledge and Security Agreement, dated July 31, 2009, relating to the
Company153s 14 188% Senior Secured Notes due 2015 and the Company153s Priority Lien
Pledge and Security Agreement, dated July 31, 2009, relating to the Company153s 12
190% Senior Secured Notes due 2014, (ii) as disclosed in the Pricing Disclosure
Package or (iii) as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect (as defined below).
(i) The Company and each of its subsidiaries has been duly formed and validly
exists as a corporation, company, partnership, limited liability company or
other entity in good standing under the laws of its jurisdiction of
organization, except as disclosed in the Pricing Disclosure Package and, in the
case of the Company153s subsidiaries, as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The Company and
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each of its subsidiaries are duly qualified or registered to do business and
is in good standing as a foreign corporation, partnership or limited liability
company or other entity in each jurisdiction in which the character or location
of its properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to be so
qualified or registered or in good standing which (individually or in the
aggregate) would not reasonably be expected to have a material adverse effect on
(i) the business, financial condition, results of operations or stockholder153s
equity of the Company and its subsidiaries, taken as a whole; or (ii) the
ability of the Company to consummate the transactions contemplated by this
Agreement (a “Material Adverse Effect“).
(j) The Company has full corporate right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
(k) The Securities have been duly and validly authorized and, when issued and
delivered and paid for as provided herein, will be fully paid and
non-assessable. The shares of common stock issuable upon conversion of the
Securities have been duly and validly authorized; the shares of common stock
issuable upon conversion of the Securities at the “minimum conversion rate” (as
such term is used in the Prospectus) as of the Closing Date have been duly
reserved for issuance upon conversion of the Securities; and such additional
shares as shall be issuable at the minimum conversion rate as in effect from
time to time will be duly reserved for issuance upon conversion of the
Securities; and when issued and delivered upon the conversion of the Securities,
all shares of common stock so issued and delivered will be duly and validly
issued, fully paid and non-assessable. The shares of common stock and preferred
stock referred to herein conform to the descriptions thereof in the Pricing
Disclosure Package.
(l) No further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Securities as contemplated herein or the issuance of the shares of common stock
issuable upon conversion of the Securities at the “minimum conversion rate” (as
such term is used in the Prospectus) as of the Closing Date. The execution,
delivery and performance of this Agreement and compliance by the Company with
all of the provisions hereof, and the consummation of the transactions
contemplated hereby, will not (i) require any consent, approval, authorization
or other order of any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the securities or Blue
Sky laws of the various states or jurisdictions outside the United States), (ii)
be in contravention of any law, rule or regulation applicable to it or of any
order applicable to it of any court or of any governmental body or
instrumentality having jurisdiction over it or its properties, (iii) violate any
of the provisions of the certificate of incorporation or bylaws of the Company
or (iv) conflict with or constitute a breach of any of the terms or provisions
of, or a default under, any agreement to which the Company is a party or by
which it is bound, except in the case of each of clauses (i), (ii) and (iv), for
consents, approvals, authorizations, other orders, contraventions, violations,
conflicts, breaches or defaults which would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(m) The financial statements, including the notes thereto, and any supporting
schedules included in the Pricing Prospectus present fairly, in all material
respects, the financial
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position as of the dates indicated and the cash flows and results of
operations for the periods specified of the Company and its consolidated
subsidiaries; except as may be otherwise stated in the Pricing Prospectus, said
financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved; and any supporting schedules included in the
Pricing Prospectus present fairly, in all material respects, the information
required to be stated therein. Other than as included in the Pricing Prospectus,
no other financial statements or supporting schedules are required to be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
by the Act or the Rules and Regulations. The other financial information
included in the Pricing Prospectus presents fairly in all material respects the
information presented therein and has been derived from the books and records of
the respective entities presented therein.
(n) The Company is not, and, after giving effect to application of the net
proceeds of the Offering as described in the Pricing Disclosure Package, will
not be, required to register as an “investment company” under the Investment
Company Act of 1940, as amended, and is not and will not be an entity
“controlled” by an “investment company” within the meaning of such act.
(o) Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, employee or affiliate of the Company or any
of its subsidiaries is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC“); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC or for the purpose of financing any activity
that is prohibited as to U.S. persons under
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U. |
S. sanctions administered by OFAC. |
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(p) To the Company153s knowledge, the activities of each of the Company, its |
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subsidiaries, and each of its and their respective officers, directors or
employees, in their capacities as such, have not violated, and the Company153s
participation in the offering will not violate, (i) the Foreign Corrupt
Practices Act of 1977 (the “FCPA“), (ii) anti-bribery laws, including any
law, rule, or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International Business
Transactions, signed December 17, 1997 (excluding the FCPA) and (iii) anti-money
laundering laws, including applicable federal, state, international, foreign or
other laws or regulations regarding anti-money laundering, including Title 18
U.S. Code section 1956 and 1957, the Patriot Act and the Bank Secrecy Act,
except in the case of each of clauses (ii) and (iii), for any violation which,
singularly or in the aggregate with all other such violations, would not
reasonably be expected to have a Material Adverse Effect.
(q) Except as described in the Pricing Disclosure Package, there is no legal
or governmental proceeding, including routine litigation, pending or, to the
Company153s knowledge, threatened, to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, singularly or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
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(r) Except as described in the Pricing Disclosure Package, there has been no
storage, generation, transportation, handling, treatment, disposal, discharge,
emission, or other release of any kind of toxic or other wastes or other
hazardous substances by, due to or caused by the Company (or, to the Company153s
knowledge, any other entity for whose acts or omissions the Company is liable)
upon any other property now or previously owned or leased by the Company or any
of its subsidiaries, or upon any other property, in violation of any statute or
any ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or permit,
give rise to any liability, except for any violation or liability which would
not reasonably be expected to have, singularly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; except as described in
the Pricing Disclosure Package, there has been no disposal, discharge, emission
or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company or any of its subsidiaries has
knowledge, except for any such disposal, discharge, emission or other release of
any kind, which would not reasonably be expected to have, singularly or in the
aggregate with all such discharges and other releases, a Material Adverse
Effect. The Company has not agreed to assume, undertake or provide
indemnification for any liability of any other person under any environmental
law, including any obligation for cleanup or remedial action, except as would
not reasonably be expected to have a Material Adverse Effect or as disclosed in
the Pricing Disclosure Package.
(s) Except as described in the Pricing Disclosure Package, the Company and
its subsidiaries own or possess adequate rights to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses, formulae, customer lists, and
know-how and other intellectual property (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) (the “Intellectual Property“) necessary for the conduct of
their respective businesses as being conducted and as described in the Pricing
Disclosure Package, other than any Intellectual Property the absence of which
would not reasonably be expected to have a Material Adverse Effect, and have no
reason to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any such
right of others, which claim would reasonably be expected to result in a
Material Adverse Effect. Except as described in the Pricing Disclosure Package
or as would not reasonably be expected to have a Material Adverse Effect, (i) to
the Company153s knowledge, there is no infringement by third parties of any of the
Company153s Intellectual Property; (ii) there is no pending or, to the Company153s
knowledge, threatened action, suit, proceeding or claim by others challenging
the Company153s or its subsidiaries153 rights in or to any of its Intellectual
Property, and the Company is unaware of any facts which would form the basis for
any such claim.
(t) The Company and its subsidiaries have all necessary consents,
authorizations, approvals, clearances, orders, certificates and permits of and
from, and have made all required declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals to own, lease, license and use
their respective properties and assets, as applicable, and to conduct their
respective businesses in the manner described in the Pricing Disclosure Package;
except such consents, authorizations, approvals, clearances, orders,
certificates, permits, declarations and
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filings the failure of which to have would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(u) Except as described in the Pricing Disclosure Package, the Company and
its subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that: (i) transactions are executed in accordance
with management153s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management153s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission153s rules and forms,
including controls and procedures designed to ensure that such information is
accumulated and communicated to the Company153s management as appropriate to allow
timely decisions regarding required disclosure; and such disclosure controls and
procedures are effective to perform the functions for which they were
established; any significant material weaknesses in internal accounting controls
have been identified for the Company153s Chief Executive Officer and its Chief
Financial Officer; and since the date of the most recent evaluation of such
internal accounting controls, there have been no significant changes in internal
accounting controls or in other factors that could significantly affect internal
accounting controls; except in each case as described in the Pricing Disclosure
Package.
(v) Except as described in the Pricing Disclosure Package, the Company and
its subsidiaries have accurately prepared and timely filed all federal, state
and other tax returns that are required to be filed by them and have paid or
made provision for the payment of all taxes, assessments, governmental or other
similar charges, including without limitation, all sales and use taxes and all
taxes which they are obligated to withhold from amounts owing to their
respective employees, creditors and third parties, with respect to the periods
covered by such tax returns (whether or not such amounts are shown as due on any
tax return), except any amounts the Company is contesting in good faith or where
the failure to so file or pay would not reasonably be expected to have a
Material Adverse Effect. Except as described in the Pricing Disclosure Package,
no deficiency assessment with respect to a proposed adjustment of the Company153s
or any of the subsidiaries153 federal, state, or other taxes is pending or, to the
Company153s knowledge, threatened, which would reasonably be expected to have a
Material Adverse Effect. Except as described in the Pricing Disclosure Package,
there is no material tax lien, whether imposed by any federal, state, or other
taxing authority, outstanding against the assets, properties or business of the
Company or any of its subsidiaries, which would reasonably be expected to have a
Material Adverse Effect.
(w) Except as described in the Pricing Disclosure Package, the Company and
its subsidiaries own or lease all such properties as are necessary to the
conduct of their respective businesses as presently operated as described in the
Pricing Disclosure Package, except for such failures to own or lease such
properties which would not reasonably be expected to have a
8
Material Adverse Effect; and the Company and its subsidiaries have good and
marketable title to or valid leasehold interests in all of their respective
properties, in each case free and clear of any and all liens, other than (i)
pursuant to the Company153s Junior Lien Pledge and Security Agreement, dated July
31, 2009, relating to the Company153s 14 188% Senior Secured Notes due 2015 and the
Company153s Priority Lien Pledge and Security Agreement, dated July 31, 2009,
relating to the Company153s 12 190% Senior Secured Notes due 2014, (ii) as described
in the Pricing Disclosure Package or (iii) as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(x) Except as described in the Pricing Disclosure Package, the Company and
its subsidiaries maintain insurance in such amounts and covering such risks as
the Company reasonably considers adequate for the conduct of their respective
businesses and the value of their respective properties, all of which insurance
is in full force and effect, except where the failure to maintain such insurance
would not reasonably be expected to have a Material Adverse Effect. Except as
described in the Pricing Disclosure Package, there are no material claims by the
Company or any subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause, except for such claims the denial of which would not reasonably
be expected to have a Material Adverse Effect.
(y) Except in each case as described in the Pricing Disclosure Package or as
would not (individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect, no “prohibited transaction” (as defined in either
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), including the regulations and published interpretations thereunder or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time
(the “Code”)), “failure to meet minimum funding standards” (under Section 302 of
ERISA) or other event of the kind described in Section 4043(b) of ERISA (other
than events with respect to which the 30-day notice requirement under Section
4043 of ERISA has been waived) has occurred with respect to any “employee
benefit plan” (as defined in Section 3(3) of ERISA) for which the Company or any
of its subsidiaries would have any liability; each such employee benefit plan
for which the Company or any of its subsidiaries would have any liability is in
compliance in all material respects with applicable law, including (without
limitation) ERISA and the Code; and the Company has not incurred and does not
reasonably expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from any “pension plan” (as defined in Section
3(2)(A) of ERISA).
(z) Neither the Company nor any of its affiliates (within the meaning of Rule
144 under the Act) has taken, directly or indirectly, any action which
constitutes or is designed to cause or result in, or which could reasonably be
expected to constitute, cause or result in, the unlawful stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Securities.
(aa) KPMG LLP, which has certified certain financial statements and
supporting schedules and information of the Company and its subsidiaries that
are included in the Registration Statement, the Pricing Prospectus and the
Prospectus and whose report appears in the Registration Statement, the Pricing
Prospectus and the Prospectus is an independent registered public accounting
firm with respect to the Company as required by the Act, the Exchange Act and
the Rules and Regulations.
9
(bb) The Company is in compliance in all material respects with all presently
applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder (the “Sarbanes-Oxley Act“).
3. Purchase and Offering of Securities. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price per share of $97.00,
the number of Registered Securities set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Option Securities as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in clause
(a) of this Section 3, that portion of the number of Option Securities as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Option
Securities by a fraction, the numerator of which is the maximum number of Option
Securities which such Underwriter is entitled to purchase as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Option Securities that all of the Underwriters are
entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their
election up to 337,500 Option Securities, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales of shares
in excess of the number of Registered Securities. Any such election to purchase
Option Securities may be exercised, on one or more occasions, only by written
notice from you to the Company, given within a period of 13 calendar days after
the date of this Agreement, setting forth the aggregate number of Option
Securities to be purchased and the date on which such Option Securities are to
be delivered, as determined by you but in no event earlier than the First
Closing Date (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
4. Delivery. The Securities to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Goldman, Sachs & Co. may request upon at least
forty-eight hours153 prior notice to the Company shall be delivered by or on
behalf of the Company to Goldman, Sachs & Co., through the facilities of The
Depository Trust Company (“DTC“), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified
by the Company to Goldman, Sachs & Co. at least forty-eight hours in
advance. The Company will cause the certificates representing the Securities to
be made available for checking and packaging at least twenty-four hours prior to
the Closing Date (as defined below) with respect thereto at the office of DTC or
its designated custodian (the “Designated Office“). The time and date of
such delivery and payment shall be, with respect to the Registered Securities,
10:30 a.m., New York City time, on February 28, 2011 or such other time and date
as Goldman, Sachs & Co. and the Company may agree upon in writing, and, with
respect to the Option Securities, 10:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given by Goldman,
Sachs & Co. in accordance with Section 3 hereof of the Underwriters153
election to purchase such Option Securities, or such other time and
10
date as Goldman, Sachs & Co. and the Company may agree upon in writing.
Such time and date for delivery of the Registered Securities is herein called
the “First Closing Date“, such time and date for delivery of the Option
Securities, if not the First Closing Date, is herein called the “Second
Closing Date“, and each such time and date for delivery is herein called a
“Closing Date“.
The documents to be delivered at each Closing Date by or on behalf of the
parties hereto pursuant to Section 5 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Underwriters pursuant
to Section 5 hereof, will be delivered at the offices of Latham & Watkins
LLP, 885 Third Avenue, New York, New York 10022 (the “Closing
Location“), and the Securities will be delivered at the Designated Office,
all at such Closing Date. A meeting will be held at the Closing Location at 5:00
p.m., New York City time, on the New York Business Day next preceding each
Closing Date, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, “New York Business Day” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. Certain Agreements of the Company. The Company agrees with the
several
Underwriters that, in connection with the offering of Registered Securities:
(a) The Company will timely file the Prospectus with the Commission pursuant
to Rule 424(b); the Company will advise you promptly of any such filing pursuant
to Rule 424(b); the Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will afford the Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement; the Company will advise the Representatives
promptly of the filing and effectiveness of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its reasonable
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued; the Company will advise the
Representatives of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or to its
knowledge the threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information.
(b) The Company will prepare a final term sheet, containing a description of
the Registered Securities, in a form approved by the Representatives, and file
such term sheet pursuant to Rule 433(d) under the Act within the time period
prescribed by such Rule.
(c) The Company will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus
11
for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities.
(d) The Company will comply with the requirements of Rule 433 with respect to
each Issuer Free Writing Prospectus including, without limitation, all
prospectus delivery, filing, record retention and legending requirements
applicable to each such Issuer Free Writing Prospectus.
(e) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Act (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act), any event occurs in the reasonable judgment of the
Representatives or the Company as a result of which the Registration Statement,
the Pricing Disclosure Package (prior to the availability of the Prospectus) or
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Registration Statement, the Pricing Disclosure Package or the Prospectus or
to file under the Exchange Act any document incorporated by reference in the
Registration Statement, the Pricing Disclosure Package or the Prospectus in
order to comply with the Act or the Exchange Act the Company will promptly
notify the Representatives and will prepare and file with the Commission,
subject to Section 5(a) above, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
The Company will not, without the prior consent of the Representatives, (a)
make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act, except for any Issuer Free
Writing Prospectus set forth in Schedule II hereto, or (b) file, refer to,
approve, use or authorize the use of any “free writing prospectus” as defined in
Rule 405 under the Act with respect to the Offering or the Securities other than
as set forth in Schedule II hereto. The Company consents to the use by any
Underwriter of any 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 Securities or their offering
and that is included in any Preliminary Prospectus, (ii) information that
describes the final terms of the Securities or their offering and that is
included in the term sheet of the Company contemplated in Section (5)(b) of this
Agreement or (iii) information permitted by Rule 134 under the Act.
Notwithstanding any of the foregoing to the contrary, except pursuant to Section
5(f) hereof, no Underwriter shall include any “issuer information” (as defined
in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or
referred to by such Underwriter without the prior consent of the Company where
the use or reference to such free writing prospectus would require the filing of
such “issuer information” with the Commission pursuant to Rule 433(d) due to the
Underwriters153 inclusion of such “issuer information” in any “free writing
prospectus”.
(f) If at any time any event shall have occurred as a result of which any
Issuer Free Writing Prospectus as then amended or supplemented would, in the
judgment of the Representatives or the Company, conflict with the information in
the Registration Statement, the Preliminary Prospectus or the Prospectus as then
amended or supplemented, or would, in the judgment of the Representatives or the
Company, include, when taken together with the Pricing
12
Disclosure Package, an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances existing at the time of
delivery to the purchaser, not misleading, or if to comply with the Act or the
Rules and Regulations it shall be necessary at any time to amend or supplement
any Issuer Free Writing Prospectus, the Company will notify the Representatives
promptly and, if requested by the Representatives, prepare and furnish without
charge to each Underwriter an appropriate amendment or supplement (in form and
substance reasonably satisfactory to the Representatives) that will correct such
statement, omission or conflict or effect such compliance.
(g) As soon as practicable after the date of this Agreement, but in no event
later than twelve months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), the Company will make generally
available to its security holders an earning statement which will satisfy the
provisions of Section 11(a) of the Act.
(h) If by the third anniversary (the “Renewal Deadline“) of the
initial effective date of the Registration Statement, any of the Securities
remain unsold by the Underwriters, the Company will file, if it has not already
done so and is eligible to do so, an automatic shelf registration statement
relating to the Securities, in a form reasonably satisfactory to you. If at the
Renewal Deadline the Company is not eligible to file an automatic shelf
registration statement, the Company will, if it has not already done so, file a
new shelf registration statement relating to the Securities, in a form
reasonably satisfactory to you and will use its reasonable best efforts to cause
such registration statement to be declared effective within 180 days after the
Renewal Deadline. The Company will take all other action necessary to permit the
public offering and sale of the Securities to continue as contemplated in the
expired registration statement relating to the Securities. 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.
(i) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus, all amendments and
supplements to such documents, and all documents incorporated by reference in
the Registration Statement, any Preliminary Prospectus and the Prospectus, in
each case as soon as available and in such quantities as are reasonably
requested.
(j) The Company will arrange for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives reasonably designate
and will continue such qualifications in effect so long as required for the
distribution, except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation, to execute a general
consent to service of process or to subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(k) During the period in which the Securities remain outstanding, the Company
will furnish to the Representatives, upon request, a copy of its annual report
to stockholders for such year; and, upon request, the Company will furnish to
the Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed
13
with the Commission under the Exchange Act or mailed to stockholders and (ii)
such other information concerning the Company as the Representatives may
reasonably request.
(l) The Company will pay the costs incident to the authorization, issuance,
sale and delivery of the Securities to be sold by the Company to the
Underwriters and any taxes payable in that connection; the costs incident to the
preparation, printing and filing under the Act of the Registration Statement and
any amendments and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits thereto
required to be filed by the Company under the Exchange Act; the cost of
distributing the Registration Statement to the Underwriters as originally filed
and each amendment thereto, each post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendments or supplements to or any documents incorporated by
reference in any of the foregoing documents as provided in this Agreement; the
costs of filing with the Financial Industry Regulatory Authority, Inc., if
necessary; the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in this subsection and
of preparing a Blue Sky memorandum and a memorandum concerning the legality of
the Securities as an investment (including reasonable fees of counsel to the
Underwriters in connection therewith; provided, that such fees of
counsel in connection with such Blue Sky memorandum shall not exceed $5,000);
the costs of printing and issuance of certificates; any transfer agent153s fees;
and all other reasonable costs and expenses incident to the performance of the
obligations of the Company under this Agreement, provided that, except
as provided in this subsection and Section 9, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Securities which they may sell, the expenses of
advertising any offering of the Securities made by the Underwriters and the cost
of printing any Agreement among Underwriters, provided, further, that
after nine months from the date of the this Agreement, the Underwriters shall
pay the costs of printing any additional Registration Statements or
Prospectuses, or any amendments or supplements thereto, required for their own
use.
(m) During the period beginning from the date hereof and continuing to and
including the date that is 90 days after the date of the Prospectus, the Company
will not, without the prior written consent of the Representatives, (i) offer,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise transfer or dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to the Securities
or any securities of the Company that are substantially similar to the
Securities, including but not limited to any options or warrants to purchase
shares of the Securities or any securities that are convertible into or
exchangeable for, or that represent the right to receive, the Securities or any
such substantially similar securities or to the Company153s common stock, or
publicly disclose the intention to make such an offer, sale, pledge, disposition
or filing or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the
Securities or the Company153s common stock or any such other securities, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Securities or such other securities, in cash or otherwise. The
foregoing restrictions shall not apply to transfers (i) pursuant to the
transactions contemplated by this Agreement, (ii) of shares of the Company153s
common stock issuable upon conversion of the Securities, (iii) pursuant to
employee benefit plans existing on the date of this Agreement, (iv) of any
shares of the Company153s common stock issued by the Company in connection with
matching contributions
14
under the Company153s existing 401(K) retirement savings plans, (v) in the
event of the filing of a prospectus supplement in connection with the issuance
of common stock pursuant to the Company153s 2009 exchange offer, or (vi) upon the
conversion or exchange of convertible or exchangeable securities outstanding as
of the date of this Agreement.
(n) The Company shall have obtained and delivered to the Representatives on
or prior to the date of this Agreement executed copies of a lock-up letter
agreement from each member of the board of directors and each executive officer
of the Company, in each case substantially in the form of Schedule V hereto.
(o) To use its reasonable best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange within 30 days of the
First Closing Date.
(p) Upon request of any Underwriter, to furnish, or cause to be furnished, to
such Underwriter an electronic version of the Company153s trademarks, servicemarks
and corporate logo for use on the website, if any, operated by such Underwriter
for the purpose of facilitating the on-line offering of the Securities (the
“License“); provided, however, that the License shall be used
solely for the purpose described above, is granted without any fee and may not
be assigned or transferred.
(q) The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus.
(r) Substantially concurrently with the closing of the Offering on the First
Closing Date, the Company will issue a notice of redemption for its outstanding
12 190% Senior Secured Notes Due 2014 and 14 188% Senior Secured Notes Due 2015,
pursuant to each of the indentures governing such notes.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several
Underwriters to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties by or on behalf of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) At or prior to the execution of this Agreement and on the Closing Date,
the Representatives shall have received a letter, dated the date of delivery
thereof and any later date on which Option Securities are purchased, of KPMG
LLP, addressed to the Underwriters and the Board of Directors of the Company,
with respect to the financial statements and certain financial information
contained or referred to in the Registration Statement, Pricing Disclosure
Package and the Prospectus, as applicable. Such letter shall be in form and
substance reasonably satisfactory to the Representatives.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) of this Agreement; the final
term sheet contemplated by Section 5(b) of this Agreement, and any other
material required to be filed by the Company pursuant to Rule 433(d) under the
Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or of any part thereof shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the
15
Company or any Underwriter, shall be contemplated by the Commission; and no
stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not have
occurred (i) any change, or any development that would reasonably be expected to
result in a change, in or affecting the business, financial condition, results
of operations or stockholder153s equity of the Company and its subsidiaries, taken
as a whole, which, in the judgment of the Representatives, is so material and
adverse as to make it impracticable or inadvisable to proceed with the Offering
or the delivery of the Securities being delivered at such Closing Date on the
terms and in the manner contemplated in the Prospectus; (ii) any downgrading, or
placement on any watch list for possible downgrading, in the rating of the
Company153s debt securities by any of Standard & Poor153s Corporation or Moody153s
Investors Services, Inc.; (iii) any suspension of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by Federal or New York authorities; or (v)(A) any outbreak
or escalation of major hostilities or acts of terrorism in which the United
States is involved, any declaration of war by the United States Congress or (B)
any other substantial national or international calamity or emergency, or any
substantial change in political, financial or economic conditions or currency
exchange rates or exchange controls if the effect of any such event in clause
(A) or (B) of this sentence, in the judgment of the Representatives, makes it
impractical or inadvisable to market the Securities or proceed with completion
of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion and negative assurance
letter, dated the Closing Date, from Simpson Thacher & Bartlett LLP, the
counsel for the Company, and if Option Securities are purchased at any date
after the Closing Date as specified in Section 3, an additional opinion and
negative assurance letter from such counsel, addressed to the Underwriters and
dated such later date, confirming that the statements expressed as of the
Closing Date in such opinions remain valid as of such later date; such opinions
and letters shall be in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect set forth in Schedule III hereto.
(e) The Representatives shall have received an opinion, dated the Closing
Date, from Nancy Straus Sundheim, General Counsel for the Company, in form and
substance reasonably acceptable to the Representatives, and if Option Securities
are purchased at any date after the Closing Date as specified in Section 3,
additional opinions from such counsel, addressed to the Underwriters and dated
such later date, confirming that the statements expressed as of the Closing Date
in such opinions remain valid as of such later date; such opinions shall be in
form and substance reasonably satisfactory to the Underwriters, substantially to
the effect set forth in Schedule IV hereto.
(f) The Representatives shall have received from Latham & Watkins LLP,
counsel for the Underwriters, an opinion in form and substance reasonably
acceptable to the Representatives, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
16
(g) The Representatives shall have received a certificate, dated the Closing
Date and on any later date on which Option Securities are purchased, of the
Chairman of the Board, the Vice Chairman of the Board, the Chief Executive
Officer, the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or, to the Company153s knowledge, are
threatened by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material adverse
change in the financial position or results of operations of the Company and its
subsidiaries except as set forth in or contemplated by the Prospectus or as
described in such certificate.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, each affiliate of any Underwriter within the meaning of Rule 405
under the Securities Act and each selling agent of any Underwriter from and
against any losses, claims, damages, or liabilities whatsoever, joint or
several, to which such Underwriter may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
(A) the Registration Statement or in any amendment thereof, or in any
Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or in
any supplement thereto or amendment thereof, or in any Issuer Free Writing
Prospectus, or in any “issuer information” (as defined in Rule 433(h)(2) under
the Act) filed or required to be filed pursuant to Rule 433(d) under the Act, or
(B) any other “written communication” (as defined in Rule 405 under the Act)
provided to investors by, or with the approval of, the Company in connection
with the Offering and any “road show” (as defined in Rule 433 under the Act )
for the Offering (collectively, “Marketing Materials“), or (ii) the
omission or alleged omission to state (A) in the Registration Statement or any
amendment thereof, a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (B) in any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or in any
supplement thereto or amendment thereof, or in any Issuer Free Writing
Prospectus, or in any “issuer information” (as defined in Rule 433(h)(2) under
the Act ) filed or required to be filed pursuant to Rule 433(d) under the Act,
or in any Marketing Materials, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity
17
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement any amendment thereof, 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) any untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or in any
amendment thereof or supplement thereto, any Issuer Free Writing Prospectus, or
in any “issuer information” (as defined in Rule 433(h)(2) under the Act) filed
or required to be filed pursuant to Rule 433(d) under the Act or any Marketing
Materials, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
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 reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for use
therein and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
Representatives shall have the right to employ one counsel (in addition to one
local counsel) to represent the Representatives and those other Underwriters who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section if, in the reasonable judgment of outside counsel to the Underwriters,
it is advisable for the Representatives and those other Underwriters to be
represented by separate counsel because separate defenses are available to such
Underwriters, and in that event the
18
reasonable fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall, without the prior written consent of the
indemnified parties, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened claim,
investigation, action or proceeding in respect of which the indemnified party is
or reasonably could have been a party and indemnity or contribution may or could
have been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, investigation, action or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or any failure to act, by or on behalf of the indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in the clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties153
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purposes) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the aggregate
underwriting discounts and commissions received by it exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters153 obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
19
(e) The obligations of the Company under this Section shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase securities hereunder and the aggregate
amount of the Securities that such defaulting Underwriter of Underwriters agreed
but failed to purchase does not exceed 10% of the total amount of the
Securities, the Representatives may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons, including any of
the Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under this Agreement, to purchase the Securities that
such defaulting Underwriters agreed but fail to purchase. If any Underwriter or
Underwriters so default and the aggregate amount of the Securities with respect
to which such default or defaults occur exceeds 10% of the total amount of the
Securities and arrangements satisfactory to the Representatives and the Company
for the purchase of such Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 5(l), Section 7 and Section 9. As used in this
Agreement, the term “Underwriter” includes any person substituted for
an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of the
several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters153 obligations to
purchase the amounts of the Securities set forth opposite their names in
Schedule I hereto.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any termination of this Agreement or any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person and will survive delivery of and payment for the
Securities. If the obligations of the Underwriters with respect to any offering
of Securities are terminated pursuant to Section 8 or if for any reason the
purchase of the Securities by the Underwriters under this Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5(l) and the respective obligations of the
Company and the Underwriters pursuant to Section 7 shall remain in effect. If
for any reason the purchase of the Securities by the Underwriters is not
consummated other than because of the termination of this Agreement pursuant to
Section 8 or a failure to satisfy the conditions set forth in Sections 6(c)(ii)
– 6(c)(v), the Company shall reimburse the Underwriters, severally, for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the
20
Securities. The provisions of Sections 12 and 14 shall also survive any
termination or modification of this Agreement.
10. No Fiduciary Duty. The Company hereby acknowledges and agrees
that, with respect to any offering of Securities pursuant to this Agreement, (i)
the terms of this Agreement, and the offering of the Securities (including the
price of the Securities) were negotiated at arm153s length between sophisticated
parties represented by counsel; (ii) no fiduciary, advisory or agency
relationship between the Company on the one hand, and the Underwriters on the
other hand has been created as a result of any of the transactions contemplated
by this Agreement or the process leading to such transactions, irrespective of
whether any Underwriter has advised or is advising the Company on other matters,
(iii) the Underwriters153 obligations to the Company in respect of the Offering
are set forth in this Agreement in their entirety and (iv) the Company has
obtained such legal, tax, accounting and other advice as they deem appropriate
with respect to this Agreement and the transactions contemplated hereby and any
other activities undertaken in connection therewith, and the Company is not
relying on the Underwriters with respect to any such matters. The Company hereby
agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect to the Company, or owes a
fiduciary or similar duty to it, in connection with such transaction or the
process leading thereto.
11. Notices. All communications hereunder will be in writing and, if
sent to the Company, will be mailed, delivered, telexed or telecopied and
confirmed to it at 801 Lakeview Drive, Suite 100, Blue Bell, Pennsylvania 19422,
Fax: 215-986-9342, Attention: Treasurer, with a copy to the General Counsel,
Fax: 215-986-9388. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representatives in care of
Goldman, Sachs & Co., 200 West Street, New York, New York 10282-2198,
Attention: Registration Department and Citigroup Global Markets Inc., 388
Greenwich Street, New York, New York 10013, Fax:
|
(212) |
816-7912 Attention: General Counsel. |
|
12. Successors. This Agreement will inure to the benefit of and be |
|
Company and such Underwriters as are identified in this Agreement and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign merely because of such purchase.
13. Certain Definitions. For purposes of this Agreement, (a)
“business day” means any day on which the New York Stock Exchange is open
for trading and (b) “subsidiary” and “significant subsidiary” have
the meanings set forth in Rule 405 of the Rules and Regulations.
14. Applicable Law; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, including, without limitation, Section 5-1401 of the New York General
Obligations Law. The Company and the Underwriters agree that any suit or
proceeding arising in respect of this agreement or our engagement will be tried
exclusively in the U.S. District Court for the Southern District of New York or,
if that court does not have subject matter jurisdiction, in any state court
located in The City and County of New York and the Company and the Underwriters
agree to submit to the jurisdiction of, and to venue in, such courts.
The Company and each
21
of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together (including the terms of this Agreement incorporated by reference
therein) shall constitute one and the same instrument.
|
16. Miscellaneous. |
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriters, or any of them, with
respect to the subject matter hereof.
Notwithstanding anything herein to the contrary, the Company is authorized to
disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including tax opinions and other tax analyses) provided to the Company relating
to that treatment and structure, without the Underwriters153 imposing any
limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall
not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any
facts that may be relevant to that treatment.
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.
If the foregoing is in accordance with the Representatives153 understanding,
please sign and return to us five counterparts hereof, and upon the acceptance
hereof by the Representatives, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that the
Representatives153 acceptance of this letter on behalf of each of the Underwriters
is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request.
|
[Signatures begin on following page] |
22
|
Very truly yours, |
|
Unisys Corporation |
|
By: /s/ Scott A. Battersby |
Accepted as of the date hereof, on their own behalf and as Representatives on
behalf of the Underwriters named in Schedule I hereto:
|
Goldman, Sachs & Co. |
|
By: |
Goldman, Sachs & Co. |
|
|
|
||
|
(Goldman, Sachs & Co.) |
|
Citigroup Global Markets Inc. |
|
By: |
/s/ Brian Mass |
|
|
|
||
|
Name: Brian Mass |
||
|
Title: Director |
23
|
SCHEDULE I |
|
Number of Option |
||||
|
Total Number of |
Securities to be |
|||
|
Underwriter |
Registered |
Purchased if |
||
|
Securities |
Maximum Option |
|||
|
to be Purchased |
Exercised |
|||
|
|
|
|||
|
Goldman, Sachs & Co |
1,170,000 |
175,500 |
||
|
Citigroup Global Markets Inc. |
990,000 |
148,500 |
||
|
RBS Securities Inc |
90,000 |
13,500 |
||
|
Total. |
2,250,000 |
337,500 |
||
Schedule I – 1
Schedule II – 1
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