EXHIBIT 1(a)
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT FOR
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DEBT SECURITIES AND WARRANTS
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Dated: July __, 1998
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TABLE OF CONTENTS
SECTION 1. Representations and Warranties................................................................... 5
(a) Representations and Warranties by the Company...................................................... 5
(1) Compliance with Registration Requirements..................................................... 5
(2) Incorporated Documents........................................................................ 6
(3) Independent Accountants....................................................................... 6
(4) Financial Statements.......................................................................... 6
(5) No Material Adverse Change in Business........................................................ 7
(6) Good Standing of the Company.................................................................. 7
(7) Good Standing of Subsidiaries................................................................. 7
(8) Capitalization................................................................................ 8
(9) Authorization of this Underwriting Agreement and the Terms Agreement.......................... 8
(10) Authorization of Senior Debt Securities and/or Subordinated Debt Securities................... 8
(11) Authorization of Indentures................................................................... 9
(12) Authorization of Warrants..................................................................... 9
(13) Authorization of Index Warrant Indenture or Warrant Agreement................................. 9
(14) Authorization of Underlying Securities........................................................ 10
(15) Authorization of Deposit Agreement............................................................ 11
(16) Description of the Underwritten Securities, Indentures, Warrant
Agreements and Underlying Securities.......................................................... 11
(17) Absence of Defaults and Conflicts............................................................. 11
(18) Absence of Labor Dispute...................................................................... 12
(19) Absence of Proceedings........................................................................ 12
(20) Exhibits...................................................................................... 12
(21) Absence of Further Requirements............................................................... 12
(22) Possession of Intellectual Property........................................................... 13
(23) Possession of Licenses and Permits............................................................ 13
(24) Title to Property............................................................................. 13
(25) Commodity Exchange Act........................................................................ 14
(26) Compliance with Cuba Act...................................................................... 14
(b) Officer's Certificates............................................................................. 14
SECTION 2. Sale and Delivery to Underwriters; Closing....................................................... 15
(a) Underwritten Securities............................................................................ 15
(b) Payment............................................................................................ 15
(c) Denominations; Registration........................................................................ 15
SECTION 3. Covenants of the Company......................................................................... 15
(a) Compliance with Securities Regulations and Commission Requests..................................... 15
(b) Filing of Amendments............................................................................... 16
(c) Delivery of Registration Statements................................................................ 16
(d) Delivery of Prospectuses........................................................................... 16
ii
(e) Continued Compliance with Securities Laws.......................................................... 16
(f) Blue Sky Qualifications............................................................................ 17
(g) Earnings Statement................................................................................. 17
(h) Reservation of Securities.......................................................................... 17
(i) Use of Proceeds.................................................................................... 17
(j) Listing............................................................................................ 17
(k) Restriction on Sale of Securities.................................................................. 17
(l) Reporting Requirements............................................................................. 18
SECTION 4. Payment of Expenses............................................................................. 18
(a) Expenses........................................................................................... 18
(b) Termination of Agreement........................................................................... 19
SECTION 5. Conditions of Underwriters' Obligations......................................................... 19
(a) Effectiveness of Registration Statement............................................................ 19
(b) Opinion of Counsel for Company..................................................................... 19
(c) Opinion of Counsel for Underwriters................................................................ 19
(d) Officers' Certificate.............................................................................. 20
(e) Accountant's Comfort Letter........................................................................ 20
(f) Rating............................................................................................. 20
(g) Approval of Listing................................................................................ 20
(h) No Objection....................................................................................... 20
(i) Additional Documents............................................................................... 21
(j) Termination of Terms Agreement..................................................................... 21
SECTION 6. Indemnification................................................................................. 22
(a) Indemnification of Underwriters.................................................................... 22
(b) Indemnification of Company, Directors and Officers................................................. 22
(c) Documentary Stamp or Similar Issue Tax Indemnification............................................. 22
(d) Actions against Parties; Notification.............................................................. 22
(e) Settlement without Consent if Failure to Reimburse................................................. 23
SECTION 7. Contribution.................................................................................... 23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................. 25
SECTION 9. Termination..................................................................................... 25
(a) Underwriting Agreement............................................................................. 25
(b) Terms Agreement.................................................................................... 25
(c) Liabilities........................................................................................ 25
SECTION 10. Default by One or More of the Underwriters...................................................... 26
SECTION 11. Notices......................................................................................... 27
SECTION 12. Parties......................................................................................... 27
SECTION 13. GOVERNING LAW................................................................................... 28
SECTION 14. Effect of Headings.............................................................................. 28
iii
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
(a Delaware corporation)
Debt Securities and Warrants
UNDERWRITING AGREEMENT
July ___, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., a Delaware corporation (the "Company"), proposes
to issue and sell its (i) senior or subordinated debt securities (the "Debt
Securities"), both of which may be convertible into common stock, par value
$1.33 per share, of the Company (the "Common Stock"), preferred stock, par value
$1.00 per share, of the Company (the "Preferred Stock") or Depositary Shares
representing Preferred Stock (the "Depositary Shares"), (ii) warrants to
purchase Debt Securities (the "Debt Security Warrants"), (iii) warrants
entitling the holders thereof to receive from the Company a payment or delivery
determined by reference to decreases or increases in the level of an index or
portfolio based on one or more equity or debt securities (including, but not
limited to, the price or yield of such securities), any statistical measure of
economic or financial performance (including, but not limited to, any consumer
price, currency or mortgage index) or the price or value of any commodity or any
other item or index or a combination thereof (the "Index Warrants") or (iv)
warrants to receive from the Company the cash value in U.S. dollars of the right
to purchase (the "Currency Call Warrants") and/or to receive from the Company
the cash value in U.S. dollars of the right to sell (the "Currency Put Warrants"
and, together with the Currency Call Warrants, the "Currency Warrants")
specified foreign currencies or units of two or more such currencies, or any
combination thereof, as shall be designated by the Company from time to time in
or pursuant to one or more offerings on terms to be determined at the time of
sale. The Debt Security Warrants, the Index Warrants and the Currency Warrants
are collectively referred to herein as the "Warrants". As of the date hereof,
the Company has authorized the issuance and sale of up to $ aggregate
initial
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public offering price, or its equivalent based on the applicable exchange rate
at the time of offering, in such foreign currencies or units of two or more
thereof as the Company shall designate at the time of offering, of its Debt
Securities and Warrants. It is understood, however, that the Company may from
time to time authorize the issuance of additional Debt Securities and Warrants.
Unless otherwise specified in the applicable Terms Agreement (as defined
below), the Debt Securities will be issued in one or more series as (i) senior
indebtedness (the "Senior Debt Securities") under (x) an indenture, dated as of
April 1, 1983, as amended and restated (the "1983 Indenture"), between the
Company and The Chase Manhattan Bank, formerly known as Chemical Bank (successor
by merger to Manufacturers Hanover Trust Company), as trustee (the "1983
Trustee"), or (y) an indenture, dated as of October 1, 1993 (the "1993
Indenture", and together with the 1983 Indenture, the "Senior Indentures"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank, N.A.), as trustee (the "1993 Trustee" and, together with
the 1983 Trustee, the "Senior Trustees") or (ii) subordinated indebtedness (the
"Subordinated Debt Securities") under an indenture (the "Subordinated
Indenture"), between the Company and The Chase Manhattan Bank, formerly known as
Chemical Bank, as trustee (the "Subordinated Trustee"). The Senior Debt
Securities and the Subordinated Debt Securities may also be issued under one or
more other indentures (each, a "Subsequent Indenture") and have one or more
other trustees (each, a "Subsequent Trustee"). Any Subsequent Indenture
relating to Senior Debt Securities or Subordinated Debt Securities will have
terms and conditions identical in all material respects to the above-referenced
Senior Indentures or the Subordinated Indenture, as the case may be. Each
series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms established by, or
pursuant to, the applicable Indenture. Additionally, the Company may issue
Subordinated Debt Securities under a separate indenture which provides for a
single issue of zero coupon convertible Subordinated Debt Securities.
Unless otherwise specified in the applicable Terms Agreement, Index
Warrants with a minimum value payable upon the expiration of the Index Warrants
(the "Minimum Expiration Value") are to be issued under one or more indentures
(the indenture relating to any issue of Index Warrants with a Minimum Expiration
Value to be sold pursuant to this Underwriting Agreement to be identified in the
applicable Terms Agreement and to be referred to herein as the "Index Warrant
Indenture", and the Index Warrant Indentures, the Senior Indentures, the
Subordinated Indenture and any Subsequent Indentures being collectively referred
to herein as the "Indentures") between the Company and the index warrant trustee
(the "Index Warrant Trustee", and together with the Senior Trustees, the
Subordinated Trustee and any Subsequent Trustees, the "Trustees"). The Debt
Security Warrants, Index Warrants and Currency Warrants which do not have a
Minimum Expiration Value will be issued under one or more warrant agreements
(the warrant agreement relating to any issue of Debt Security Warrants, Index
Warrants or Currency Warrants without a Minimum Expiration Value to be sold
pursuant to this
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Underwriting Agreement to be identified in the applicable Terms Agreement and to
be referred to herein as the "Warrant Agreement") between the Company and the
warrant agent identified therein (the "Warrant Agent"). The Warrants may vary,
as applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the related
Underlying Securities (as hereinafter defined).
The Debt Securities and the Warrants may be offered either together or
separately. As used herein, "Securities" shall mean the Senior Debt Securities
or Subordinated Debt Securities or the Warrants or any combination thereof,
initially issuable by the Company and "Underlying Securities" shall mean the
Common Stock, Preferred Stock or Depositary Shares issuable upon conversion of
the Debt Securities and the Senior Debt Securities or Subordinated Debt
Securities issuable upon exercise of the Debt Security Warrants, as applicable.
The Preferred Stock will be issued in one or more series and each series of
Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities) and any other variable terms as set forth in the applicable
certificate of designations (each, the "Certificate of Designations") relating
to such series of Preferred Stock. A series of Preferred Stock may be
represented by Depositary Shares that are evidenced by depositary receipts (the
"Depositary Receipts") issued pursuant to a deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary identified therein (the
"Depositary") and the registered holders of the Depositary Receipts issued
thereunder.
Whenever the Company determines to make an offering of Securities through
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to each offering of Securities shall specify the
aggregate principal amount or the number, as the case may be, of Securities to
be issued (the "Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as
co-manager in connection with such offering, the aggregate principal amounts or
the number of Warrants, as the case may be, of Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery of and
payment for the Underwritten Securities and any other material variable terms of
the Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written communication (including
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facsimile) between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if
applicable, as representatives of any other Underwriters. Each offering of
Underwritten Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or through an
underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") two registration statements on Form S-3 (No. 333-44173 and pre-
effective amendment No. 1 thereto and No. 333-___________ [and pre-effective
amendment No. 1 thereto] (the "Initial Registration Statements") for the
registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). The Initial
Registration Statements have been declared effective by the Commission, and each
Indenture in effect as of the date of this Underwriting Agreement has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company will have filed such post-effective amendments to the Initial
Registration Statements as may be required, and any applicable Indenture will
have been duly qualified under the 1939 Act, prior to the execution of the
applicable Terms Agreement. The Initial Registration Statements (as so amended,
if applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), are referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
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however, that all references to the "Registration Statement" and the
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"Prospectus" shall also be deemed to include all documents incorporated therein
by reference which have been filed pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company (i) files a registration
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statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall thereafter also be deemed to
include the Rule 462 Registration Statement; (ii) files a registration statement
or registration statements with the Commission registering additional securities
under the 1933 Act which securities may be issued and sold pursuant to the terms
of this Underwriting Agreement (each, a "Subsequent Registration Statement"),
then after effectiveness of such Subsequent Registration Statement, all
references to "Registration Statement" shall thereafter be deemed to refer to
the Initial Registration Statement and/or the Subsequent Registration Statement
(each as so amended, if applicable, and including any Rule 430A Information,
Rule 434 Information or Rule 462 Registration Statement), as the case may be;
and (iii) elects to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus
4
shall mean the date of the Term Sheet. The term "preliminary prospectus" shall
mean any prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting 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, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
represents and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, and
as of the relevant Closing Time (as defined below)(in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
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requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, each Indenture in effect
as of each Representation Date has been duly qualified under the 1939 Act.
At the respective times the Registration Statement and any post-
effective amendments thereto (including the filing of the Company's most
recent Annual Report on Form 10-K with the Commission subsequent to the
date the Registration Statement became effective (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the
5
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At the
date of the Prospectus and at the Closing Time the Prospectus and any
amendments and supplements thereto did not and 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. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to (A) statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement or the Prospectus or (B) that part of the
Registration Statement that constitutes the Statement of Eligibility on
Form T-1 (the "Form T-1") under the 1939 Act of the relevant Trustee.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities 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.
(2) Incorporated Documents. The documents incorporated or deemed to be
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incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the Prospectus
and at the Closing Times, did not and will not include an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(3) Independent Accountants. The accountants who certified the
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financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
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included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as the financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statements of consolidated earnings, consolidated stockholders' equity and
consolidated cash flows of the Company and its consolidated
6
subsidiaries, or such other entity, as the case may be, for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
GAAP the information required to be stated therein. The selected financial
data and the summary financial information, if any, included in the
Registration Statement or the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements incorporated by reference in the Registration
Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective dates
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as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) except for regular quarterly dividends
on the Company's outstanding common stock and regular dividends on its
outstanding preferred stock in amounts per share that are consistent with
the terms of such preferred stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
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and is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse
Effect.
(7) Good Standing of Subsidiaries. Each subsidiary of the Company
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which is a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X under the 1933 Act (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a
7
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
where the failure to so qualify or be in good standing would not result in
a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are (A) the subsidiaries
listed in Exhibit 21 to the Annual Report on Form 10-K of the Company filed
with the Commission under Section 13 of the 1934 Act and (B) certain other
subsidiaries which, considered in the aggregate as a single subsidiary, do
not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the ▇▇▇▇ ▇▇▇.
(8) Capitalization. If the Prospectus contains a "Capitalization"
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section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth therein (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and non-
assessable, and none of such shares of capital stock was issued in
violation of preemptive or similar rights of any securityholder of the
Company.
(9) Authorization of this Underwriting Agreement and the Terms
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Agreement. This Underwriting Agreement has been, and the
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applicable Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company.
(10) Authorization of Senior Debt Securities and/or Subordinated Debt
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Securities. If the Underwritten Securities being sold pursuant to the
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applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or
prior to issuance of such Underwritten Securities will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated by the applicable Trustee in the
manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as
8
enforcement thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United States;
and such Underwritten Securities will be in the form contemplated by, and
each registered holder thereof will be entitled to the benefits of, the
applicable Indenture.
(11) Authorization of Indentures. If the Underwritten Securities being
---------------------------
sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, each applicable Indenture
has been, or prior to the issuance of such Underwritten Securities will
have been, duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery by the applicable
Trustee), will constitute a valid and legally 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,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or prohibit
the making of payments outside the United States.
(12) Authorization of Warrants. If the Underwritten Securities being
-------------------------
sold pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or prior to issuance of such
Underwritten Securities will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated in
the manner provided for the applicable Index Warrant Indenture or Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company and enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and except
further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Warrant payable other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
9
Such Underwritten Securities will be in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
applicable Index Warrant Indenture or Warrant Agreement.
(13) Authorization of Index Warrant Indenture or Warrant Agreement. If
-------------------------------------------------------------
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Warrants, each applicable Index Warrant Indenture or
Warrant Agreement has been, or prior to the issuance of such Underwritten
Securities will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery (assuming the
due authorization, execution and delivery by the applicable Trustee or
Warrant Agent), will constitute a valid and legally 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,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Warrant
payable other than in U.S. dollars (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(14) Authorization of Underlying Securities. If the Underlying
--------------------------------------
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underlying Securities have been, or
prior to issuance of such Underwritten Securities will have been, duly
authorized for issuance by the Company upon the exercise of the Debt
Security Warrants. Such Underlying Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered in accordance with the terms of the Debt Security Warrant, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or prohibit
the making of payments outside the United States. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized and reserved for
issuance by the Company upon conversion of the Debt Securities. If the
Underlying Securities include Common Stock or
10
Preferred Stock, such Underlying Securities, when issued upon such
conversion will be validly issued, fully paid and non-assessable and will
not be subject to preemptive or similar rights of any securityholder of the
Company. If the Underlying Securities include Depositary Shares, such
Underlying Securities, upon deposit by the Company of the Preferred Stock
represented thereby with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, will represent legal and valid interests in such Preferred
Stock. No holder of such Common Stock, Preferred Stock or Depositary
Receipts evidencing Depository Shares is or will be subject to personal
liability by reason of being such a holder.
(15) Authorization of Deposit Agreement. If the Underlying Securities
----------------------------------
related to the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Depositary Shares, the applicable
Deposit Agreement has been, or prior to the issuance of such Underwritten
Securities will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery (assuming due
authorization, execution and delivery by the applicable Depositary), will
constitute a valid and legally 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,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). Each registered holder of a Depositary
Receipt under the applicable Deposit Agreement will be entitled to the
proportional rights, preferences and limitations of the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipt
and to such other rights as are granted to such registered holder in such
Deposit Agreement.
(16) Description of the Underwritten Securities, Indentures, Warrant
---------------------------------------------------------------
Agreements and Underlying Securities. The Underwritten Securities being
------------------------------------
sold pursuant to the applicable Terms Agreement and each applicable
Indenture and Warrant Agreement, as of the date of the Prospectus, and any
Underlying Securities, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(17) Absence of Defaults and Conflicts. Neither the Company nor any of
---------------------------------
its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement 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 subsidiary is subject (collectively, "Agreements and
Instruments"),
11
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance by the Company of this
Underwriting Agreement, the applicable Terms Agreement, the Securities,
each applicable Indenture and Warrant Agreement and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or thereby
or in the Registration Statement and the Prospectus and the consummation of
the transactions contemplated herein and in the Registration Statement and
the Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the Underwritten
Securities as described under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or a default or Repayment
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 subsidiary of the Company pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults, events, liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any Subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of their
properties, assets or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness of the Company or any of its subsidiaries
(or any person acting on such holder's behalf) 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.
(18) Absence of Labor Dispute. No labor dispute with the employees of
------------------------
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, which may reasonably be expected to result in a
Material Adverse Effect.
(19) Absence of Proceedings. There is not any action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the assets,
properties, or operations thereof or the consummation of the transactions
contemplated under this Underwriting Agreement, the applicable Terms
Agreement, or any applicable Indenture or Warrant Agreement or the
performance by the Company of its obligations hereunder and thereunder; and
the aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective assets, property, or operations is the subject which are not
described in the
12
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(20) Exhibits. There are no contracts or documents which are of a
--------
character required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(21) Absence of Further Requirements. No filing with, or authorization,
-------------------------------
approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by the Company of its obligations
under this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement, or any applicable Indenture, Deposit
Agreement or Warrant Agreement, except such as have been already obtained
or as may be required under the 1933 Act, the 1933 Act Regulations, the
1939 Act, the 1939 Act Regulations or state securities or blue sky laws.
(22) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks, trade names and other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, except where the failure to own or possess or the
lack of ability to acquire such Intellectual Property, singly or in the
aggregate, would not result in a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(23) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to so possess such Governmental Licenses would not, singly or in
the aggregate, have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of
13
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(24) Title to Property. The Company and its subsidiaries have good and
-----------------
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except such as (A) are
described in the Registration Statement and the Prospectus or (B) do not,
singly or in the aggregate, materially affect the value of such property,
do not interfere with the use made and proposed to be made of such property
by the Company or any of its subsidiaries and do not, singly or in the
aggregate have a Material Adverse Effect; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, except where the failure of such leases or subleases to
be in full force and effect would not have a Material Adverse Effect, and
neither the Company nor any subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
subsidiary of the continued possession of the leased or subleased premises
under any such lease or sublease.
(25) Commodity Exchange Act. The Underwritten Securities being sold
----------------------
pursuant to the applicable Terms Agreement and any Underlying Securities,
upon issuance, will be excluded or exempted under, or beyond the purview
of, the Commodity Exchange Act, as amended (the "Commodity Exchange Act"),
and the rules and regulations of the Commodity Futures Trading Commission
adopted under the Commodity Exchange Act.
(26) Compliance with Cuba Act. The Company has complied with, and is
------------------------
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
or is exempt therefrom.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
14
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made (i) in the case of Securities in
registered form, at the offices of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or
(ii) in the case of Securities in bearer form, at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, Ropemaker Place, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or at such
other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 9:00
A.M. (Eastern time), on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such date
as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ for its account or, if applicable, for the respective accounts of
the Underwriters of the Underwritten Securities to be purchased by them (unless
such Underwritten Securities are issuable only in the form of one or more global
securities registered in the name of a depository or a nominee of a depository,
in which event the Underwriters' interest in such global certificate shall be
noted in a manner satisfactory to the Underwriters and their counsel). It is
understood that each Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Underwritten Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as
▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in writing at least one full business day prior to the
Closing Time. The certificates for the Underwritten Securities will be made
available for examination and packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, and with each Underwriter participating in the applicable
offering of Underwritten Securities, as follows:
15
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ immediately, and confirm the notice
in writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to 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 any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities 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 of the 1933 Act Regulations and will take such steps as it deems
necessary to ascertain promptly whether 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 the Prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters
shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters, without charge,
upon request, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, without charge,
a conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. Copies of 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 each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number
16
of copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to 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 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, 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 Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, 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.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate and to maintain such qualifications in effect for a
period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities or any related Underlying Securities have been
so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of such Terms
Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as
17
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock. Preferred
Stock, Debt Securities and/or Depositary Shares, the Company will reserve and
keep available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock, Preferred Stock and/or Debt
Securities, as applicable, for the purpose of enabling the Company to satisfy
any obligations to issue such Underlying Securities upon exercise of the related
Warrants, as applicable, or upon conversion of the Debt Securities.
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its best efforts to effect the
listing of the Underwritten Securities and any related Underlying Securities,
prior to the Closing Time, on any national securities exchange or quotation
system if and as specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the later of termination of any trading
restrictions or the Closing Time with respect to the Underwritten Securities,
the Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, issue, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any new issue of debt securities of the
Company with a maturity of more than one year, including additional Debt
Securities (except for (i) any debt securities issued upon exercise of warrants,
(ii) medium-term notes of the Company issued in the ordinary course of business
through MLPF&S (A) acting as agent for the Company, or (B) acting as principal
and purchasing up to $10 million aggregate principal amount of medium-term notes
of the Company for resale, or (iii) any debt securities of the Company
denominated in a currency other than the currency in which the Underwritten
Securities subject to such Terms Agreement shall be denominated) or any warrants
for the purchase of debt securities of the Company with a maturity of more than
one year.
(l) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and
18
delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, any Warrant
Agreement, any Deposit Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Underwritten Securities or any related Underlying Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities and any
related Underlying Securities, any certificates for the Underwritten Securities
or such Underlying Securities, as applicable, to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustees, any Warrant Agent, and any Depositary and their
respective counsel, (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey
and any Legal Investment Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities and any related Underlying Securities,
if applicable, (viii) the fees and expenses incurred with respect to the listing
of the Underwritten Securities and any related Underlying Securities, if
applicable, and (ix) 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 National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities and any related Underlying
Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters named in
such Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the Underwriters to purchase and pay for the Underwritten Securities pursuant
to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been initiated or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable
19
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities and any related
Underlying Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5), as applicable (or any required post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has elected
to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in accordance
with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ &
Wood LLP, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for Underwriters. At Closing Time, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall have received the favorable opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in (1), (5), (6) to (12), as applicable, (13),
(14) (solely as to the information in the Prospectus under "Description of Debt
Securities", "Description of Debt Warrants", "Description of Currency Warrants",
"Description of Index Warrants", "Description of Preferred Stock", "Description
of Depositary Shares", Description of Preferred Stock Warrants", "Description of
Common Stock" and "Description of Common Stock Warrants", if any, or any caption
purporting to describe any such Securities), (16), (17) and the penultimate
paragraph of Exhibit B hereto. In giving such opinion, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a certificate of the President, a Vice
President, the Treasurer or the Controller of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 are true and correct with
the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) no stop order suspending the effectiveness of
20
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the date hereof and at Closing
Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from Deloitte & Touche LLP a letter
dated such date, in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together
with signed or reproduced copies for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Ratings. At Closing Time, the Underwritten Securities shall have
the ratings accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, if and as specified in the applicable Terms Agreement.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Company's other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Underwritten Securities or any of the Company's other securities.
(g) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(h) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Underwritten Securities as herein contemplated and, if applicable,
certain matters relating to the Underlying Securities, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Underwritten Securities
as herein contemplated shall be satisfactory in form and substance to ▇▇▇▇▇▇▇
▇▇▇▇▇ and counsel for the Underwriters.
(j) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
21
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of
22
the 1933 Act or Section 20 of the 1934 Act and who is a director or officer of
the Company or controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement under Item 13 of Form
S-3.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
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 such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Documentary Stamp or Similar Issue Tax Indemnification. The
Company agrees to indemnify and hold harmless each Underwriter against any
documentary stamp or similar issue tax and any related interest or penalties on
the issue or sale of the Underwritten Securities to the Underwriters which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, except that the Company shall be
liable for the fees and expenses of one counsel representing ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the persons controlling ▇▇▇▇▇▇▇ ▇▇▇▇▇ and one counsel representing all other
Underwriters and the persons controlling them. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or
23
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether 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 or by the Underwriters and the parties' relative
24
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
------------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by
the Company or Merrill
25
▇▇▇▇▇ upon the giving of 30 days' prior written notice of such termination to
the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing
Time, if (i) there has been, since the time of execution of such Terms Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United States or, if the
Underwritten Securities or any related Underlying Securities include Debt
Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange or the American Stock
Exchange or in the Nasdaq National Market System has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv) a
banking moratorium has been declared by either Federal or New York authorities
or, if the Underwritten Securities or any related Underlying Securities include
Debt Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, by the relevant authorities in the related foreign country
or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the aggregate principal amount or
number, as the case may be,
26
of Underwritten Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount or number, as the case may be, of
Defaulted Securities exceeds 10% of the aggregate principal amount or number, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Managing Director, or, in respect of any Terms Agreement, to such other person
and place as may be specified therein; and notices to the Company shall be
directed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention of the Secretary with a copy to the Treasurer at World Financial
Center, South Tower, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 12. Parties. This Underwriting Agreement and the applicable
-------
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
27
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT AND ANY
-------------
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
--------------------------------------
Authorized Signatory
28
Exhibit A
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
(a Delaware corporation)
Debt Securities and Warrants
TERMS AGREEMENT
---------------
Dated: _______________, 19__
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., a Delaware corporation (the
"Company"), proposes to issue and sell [$ aggregate principal amount
of its [senior] [subordinated] debt securities (the "Debt Securities") [
warrants (the "Debt Security Warrants") to purchase $
aggregate principal amount of [senior] [subordinated] debt securities] [title of
Index Warrants or Currency Warrants being purchased] (such securities also being
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [principal amount] [number] of Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below.
[Principal Amount]
Underwriter [Number] of Underwritten Securities
----------- -----------------------------------
-------------
Total [$]
=============
The Underwritten Securities shall have the following terms:
[Debt Securities]
---------------
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Title:
Rank:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Rating requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from _________________.
Purchase price: ___% of principal amount, plus accrued interest [amortized
original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
Debt Security Warrants
----------------------
Title:
Type:
Number:
Warrant Agreement:
Warrant Agent:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Security Warrants issued with each $__________ principal amount
of
Debt Securities:]
[Detachable Date:]
Date(s) from which or period(s) during which Debt Security Warrants are
exercisable:
Date(s) on which Debt Security Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
Principal amount purchasable upon exercise of one Debt Security Warrant:
Terms of Underlying Securities:
Form: [Registered] [Bearer]
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Listing requirements:
Rating requirements:
Other terms and conditions:
Closing date and location:
Index Warrants
--------------
Title:
Number:
[Warrant Agreement] [Index Warrant Indenture]:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Index Warrants issued with each $ principal amount of
Debt Securities:]
[Detachable Date:]
Date(s) from which or period(s) during which Index Warrants are exercisable:
Date(s) on which Index Warrants expire:
Circumstances causing automatic exercise:
Strike price(s) of Index Warrants:
Initial public offering price: $
Purchase price: $
Cash Settlement Value formula:
Listing requirements:
Rating requirements:
Other terms and conditions:
Closing date and location:
Currency Warrants
-----------------
Title:
Number:
Warrant Agreement:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Currency Warrants issued with each $ principal amount of
Debt Securities:]
[Detachable Date:]
Date(s) from which or period(s) during which Currency Warrants are exercisable:
Date(s) on which Currency Warrants expire:
Circumstances causing automatic exercise:
Strike price(s) of Currency Warrants:
Initial Public offering price: $
Purchase price: $
Cash Settlement Value formula:
Listing requirements:
Rating requirements:
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Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.-- Debt Securities and Warrants --
Underwriting Agreement" (the "Underwriting Agreement") are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each reference to Underwriters in the Underwriting Agreement so incorporated
herein by reference shall be deemed to refer to the Underwriters as defined in
this Terms Agreement.
[The Underwriter(s) hereby expressly [waives] [waive] Company's compliance
with Section 3(k) of the Underwriting Agreement.]
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
-----------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By
-------------------------
Name:
Title:
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Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, [or as
contemplated under,] the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company 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 where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect (as defined in
Section 1(a)(5) of the Underwriting Agreement).
(4) ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("MLPF&S") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in the State of New York; all of the issued and
outstanding capital stock of MLPF&S has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of our knowledge, is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of MLPF&S was issued in violation of
preemptive or similar rights of any securityholder of MLPF&S.
(5) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(6) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated by the respective Trustee in the manner provided for in the
applicable Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether the enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof may
be limited by (A) requirements that a claim with respect to any Debt Securities
denominated other than in
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U.S. dollars (or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States; and the
Underwritten Securities are in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the applicable Indenture.
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --]. The [Each] applicable Indenture has been duly authorized,
executed and delivered by the Company and (assuming due authorization, execution
and delivery thereof by the respective Trustee) constitutes a valid and legally
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, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law)[, and except further as enforcement thereof may
be limited by (A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United States].
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The Underwritten Securities have
been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Index Warrant Indenture or Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law)[, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Warrant payable other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limited, delay or prohibit
the making of payments outside the United States; and the Underwritten
Securities are in the form contemplated by and each registered holder thereof is
entitled to the benefits of, the applicable Index Warrant Indenture or Warrant
Agreement].
(9) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The [Each] applicable Index
Warrant Indenture or Warrant Agreement has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee or Warrant Agent) constitutes a valid and
legally 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, reorganization,
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moratorium or other similar laws affecting creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law)[, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Warrant payable other than in U.S.
dollars (or a foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limited,
delay or prohibit the making of payments outside the United States].
(10) [Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include Senior
Debt Securities and/or Subordinated Debt Securities -- ] The Underlying
Securities have been duly authorized for issuance upon exercise of the Debt
Security Warrants. The Underlying Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor in accordance with the terms of the Debt
Security Warrants, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law)[, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of payments
outside the United States]. [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
include Common Stock, Preferred Stock or Depositary Shares --] The Underlying
Securities have been duly authorized and reserved for issuance by the Company
[upon exercise of the [Common Stock] [Preferred Stock] Warrants] [upon
conversion of the related [Preferred Stock] [Depositary Shares]. The Underlying
Securities, when issued upon such [exercise] [conversion], will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. No holder of the
Underlying Securities is or will be subject to personal liability by reason of
being such a holder. [In addition, the Underlying Securities, upon deposit by
the Company of the Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Underlying Securities, in each case pursuant to the
applicable Deposit Agreement, will represent legal and valid interests in such
Preferred Stock.]
(11) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Depositary Shares --] The applicable Deposit
Agreement has been duly authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery thereof by the applicable
Depositary) constitutes a valid and legally 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, reorganization,
moratorium or similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in the proceeding in equity or at law). Each
registered holder of a
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Depositary Receipt under the applicable Deposit Agreement will be entitled to
the proportional rights, preferences and limitations of the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipt and to
such other rights as are granted to such registered holder in such Deposit
Agreement.
(12) [Include if the Prospectus contains a "Capitalization" section --]
The authorized, issued and outstanding shares of capital stock of the Company is
as set forth in the Prospectus under the caption "Capitalization" (except for
subsequent issuances thereof, if any, contemplated under the Underwriting
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are fully
paid and non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or similar rights of any securityholder of the Company.
(13) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the [each] applicable [Indenture] [Warrant Agreement]
conform, and any Underlying Securities, when issued and delivered in accordance
with the terms of the related Underwritten Securities, will conform, in all
material respects to the statements relating thereto contained in the Prospectus
and are in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(14) The information in the Prospectus under "Description of Debt
Securities", "Description of Debt Warrants", "Description of Currency Warrants",
"Description of Index Warrants", "Description of Preferred Stock", "Description
of Depositary Shares", "Description of Preferred Stock Warrants", "Description
of Common Stock" and "Description of Common Stock Warrants" or any caption
purporting to describe any such Securities, and in the Registration Statement
under Item 15, to the extent that it constitutes matters of law, summaries of
legal matters, the Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
(15) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the [each] applicable [Indenture]
[Warrant Agreement] and any other agreement or instrument entered into or issued
or to be entered into or issued by the Company in connection with the
transactions contemplated in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated in the Underwriting Agreement
and such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or a default
or Repayment Event (as defined in Section 1(a)(16) of the Underwriting
Agreement) under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary of the
Company pursuant to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known to us,
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 its
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subsidiaries is subject, except for such conflicts, breaches, defaults, liens,
events, charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any Subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their assets
properties, assets or operations.
(16) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and to
the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
Each applicable Indenture is qualified under the 1939 Act.
(17) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and each Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1s"), as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(18) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the performance by the
Company of its obligations under the Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated under the
Underwriting Agreement, such Terms Agreement or the [any] applicable [Indenture]
[Warrant Agreement] other than under the 1933 Act, the 1933 Act Regulations, the
1939 Act and the 1939 Act Regulations, which have been obtained, or as may be
required under the 1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939
Act Regulations or state securities or blue sky laws.
[(20)] [Include if required in Terms Agreement] The Underwritten
Securities [and any Underlying Securities], upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act") and the rules and regulations of the Commodity
Futures Trading Commission adopted under the Commodity Exchange Act.]
We have participated in conferences with officers and representatives of
the Company, representatives of the independent accountants of the Company and
the Underwriters at which the
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contents of the Registration Statement and Prospectus and related matters were
discussed and, although we are not passing upon or assuming responsibility for
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and Prospectus and have
made no independent check or verification thereof, on the basis of the
foregoing, nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-1s, as to
which we make no statement), at the time the Registration Statement or any post-
effective amendment thereto (including the filing of the Company's Annual Report
on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, 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 or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included or incorporated therein or omitted therefrom,
as to which we make no statement), at the time the Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, 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 the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
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