EXHIBIT 1.1
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
UNDERWRITING AGREEMENT
INTRODUCTORY. ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, a corporation incorporated
under the laws of the State of Delaware (the "Company"), proposes to issue and
sell from time to certain of its unsecured debt securities, preferred stock and
common stock of the Company (par value $.125 per share) ("Common Stock")
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The Registered Securities constituting debt
securities will be issued under a [SENIOR/SUBORDINATED] indenture, dated as of
______, 19 ("Indenture"), between the Company and _______., as Trustee, in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Registered Securities
constituting preferred stock may be issued in one or more series, which series
may vary as to dividend rates, redemption provisions, selling prices and other
terms. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333- ), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt securities
or preferred stock) and the terms of the offering of the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933 ("Act"), including all material incorporated by reference therein,
is hereinafter referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
("Trust Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 3, the
Registration Statement and the
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Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by any
Underwriter through the Representatives, if any, specifically for use
therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation or limited liability company in good standing
under the laws of the jurisdiction of its incorporation or formation,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and each subsidiary
of the Company is duly qualified to do business as a foreign corporation
or limited liability company in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification; all of the issued and outstanding
capital stock or interest of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable;
and the capital stock or interest of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) [IF THE OFFERED SECURITIES ARE DEBT SECURITIES:] The Indenture has
been duly authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly authorized; and
when the Offered Securities are delivered and paid for pursuant to the
Terms Agreement on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined), the Indenture will
have been duly executed and delivered, such Offered Securities will have
been duly executed, authenticated, issued and delivered and will conform
to the description thereof contained in the Prospectus and the Indenture
and such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(e)[IF THE OFFERED SECURITIES ARE PREFERRED STOCK:] The Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date (as defined below), such Offered Securities will
have been validly issued, fully paid and nonassessable and will conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
(e) [IF THE OFFERED SECURITIES ARE COMMON STOCK:] The Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with the Terms Agreement on the
Closing Date (as defined below), such Offered Securities will have been,
validly
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issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(f) [IF THE OFFERED SECURITIES ARE CONVERTIBLE:] When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date, such Offered Securities will be convertible into
Common Stock of the Company in accordance with their terms [IF THE
OFFERED SECURITIES ARE PREFERRED STOCK] or the Indenture [IF THE OFFERED
SECURITIES ARE DEBT SECURITIES]; the shares of Common Stock initially
issuable upon conversion of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Common Stock.
(g) [IF THE OFFERED SECURITIES ARE COMMON STOCK OR ARE CONVERTIBLE
INTO COMMON STOCK:] Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment.
(h) [IF THE OFFERED SECURITIES ARE COMMON STOCK OR ARE CONVERTIBLE
INTO COMMON STOCK:] There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(i) [IF THE OFFERED SECURITIES CONSTITUTE COMMON STOCK OR ARE
CONVERTIBLE INTO COMMON STOCK] [IF THEY ARE COMMON STOCK] The
outstanding shares of Common Stock [If they are convertible] or the
Common Stock into which the Offered Securities are convertible are
listed on the New York Stock Exchange (the "Stock Exchange") and the
Offered Securities have been approved for listing on the Stock Exchange,
subject to notice of issuance. [IF THE OFFERED SECURITIES ARE DEBT
SECURITIES OR PREFERRED STOCK] The Offered Securities have been approved
for listing on the stock exchange indicated in the Terms Agreement,
subject to notice of issuance.
(j) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act [AND, IF THE OFFERED
SECURITIES ARE DEBT SECURITIES], the Trust Indenture Act and such as may
be required under state securities laws.
(k) [IF THE OFFERED SECURITIES ARE DEBT SECURITIES] The execution,
delivery and performance of the Indenture, the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities [AND, IF
THE OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED STOCK,]
compliance with the terms and provisions thereof will not result in a
breach or
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violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter, by-laws or operating
agreement of the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement).
(l) The Terms Agreement (including the provisions of this Agreement)
[AND, IF THE OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED STOCK,]
any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(m) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(n) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(o) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(p) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company to
perform its obligations under [IF THE OFFERED SECURITIES ARE DEBT
SECURITIES] the Indenture, the Terms Agreement (including the provisions
of this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered Securities;
and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(q) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus such financial statements have
been prepared in conformity with the generally accepted accounting
principles in
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the United States applied on a consistent basis; any schedules included
in the Registration Statement present fairly the information required to
be stated therein; and if pro forma financial statements are included in
the Registration Statement and Prospectus: the assumptions used in
preparing the pro forma financial statements included in the
Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(r) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(s) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(t) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such business.
3. PURCHASE AND OFFERING OF OFFERED SECURITIES. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and [IF THE OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED
STOCK] the terms of the Offered Securities not already specified [IN THE
INDENTURE, IN THE CASE OF OFFERED SECURITIES THAT ARE DEBT SECURITIES],
including, but not limited to, interest rate [IF DEBT SECURITIES], dividend rate
[IF PREFERRED STOCK], maturity [IF DEBT SECURITIES], any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
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It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
[IF THE OFFERED SECURITIES ARE DEBT SECURITIES AND THE TERMS AGREEMENT
SPECIFIES "BOOK-ENTRY ONLY" SETTLEMENT OR OTHERWISE STATES THAT THE PROVISIONS
OF THIS PARAGRAPH SHALL APPLY] The Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement specifies
that the Offered Securities will not trade in DTC's Same Day Funds Settlement
System) by certified or official bank check or checks in New York Clearing House
(next day) funds or (if the Terms Agreement specifies that the Offered
Securities will trade in DTC's Same Day Funds Settlement System) in Federal
(same day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Lead Underwriter by the Company at a
bank acceptable to the Lead Underwriter, in each case drawn to the order of
at the place of payment specified in the Terms Agreement on the Closing
Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than
the second business day following the execution and delivery of the
Terms Agreement.
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(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity
to comment on any such proposed amendment or supplement; and the Company
will also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither the Lead
Underwriter's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the registration statement relating to the Registered Securities, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Lead Underwriter
reasonably requests. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and [IF THE OFFERED SECURITIES ARE DEBT SECURITIES
OR PREFERRED STOCK] the determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company as
the Lead Underwriter may reasonably request.
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(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of
this Agreement), for any filing fees or other expenses (including fees
and disbursements of counsel) in connection with qualification of the
Registered Securities for sale [IF THE OFFERED SECURITIES ARE DEBT
SECURITIES OR PREFERRED STOCK] any determination of their eligibility
for investment under the laws of such jurisdictions as the Lead
Underwriter may designate and the printing of memoranda relating thereto
[IF THEY ARE DEBT SECURITIES OR PREFERRED STOCK], for any applicable
filing fee incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, the review by the
National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters.
(i) [IF THE OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED STOCK]
The Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending the
number of days after the Closing Date specified under "Blackout" in the
Terms Agreement except issuances of Common Stock pursuant to the
conversion or exchange of convertible or exchangeable securities or the
exercise of warrants or options, in each case outstanding on the date of
the Terms Agreement, grants of employee stock options pursuant to the
terms of a plan in effect on the date of the Terms Agreement, issuances
of Common Stock pursuant to the exercise of such options or issuances of
Common Stock pursuant to the Company's dividend reinvestment plan.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of KPMG Peat Marwick LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
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(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should
be made to such unaudited financial statements and summary
of earnings for them to be in conformity with generally
accepted accounting principles;
(B) if any unaudited "capsule" information is contained
in the Prospectus, the unaudited consolidated net sales, net
operating income, net income and net income per share
amounts or other amounts constituting such "capsule"
information and described in such letter do not agree with
the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on
a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of the
Terms Agreement, there was any change in the capital stock
or any increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown
on the latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Prospectus, in consolidated
net sales, net operating income in the total or [IF THE
OFFERED SECURITIES ARE COMMON STOCK OR ARE CONVERTIBLE INTO
COMMON STOCK] per share amounts of consolidated income
before extraordinary items or net income [IF THE OFFERED
SECURITIES ARE DEBT SECURITIES] in the ratio of earnings to
fixed charges or [IF THE OFFERED SECURITIES ARE PREFERRED
STOCK] in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the
extent that such dollar amounts, percentages
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and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject to
the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by
the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving
a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or Minnesota authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification;
10
(ii) [IF THE OFFERED SECURITIES ARE DEBT SECURITIES] The
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; the
Offered Securities other than any Contract Securities have been
duly executed, authenticated, issued and delivered; the Indenture
and the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
and the Offered Securities other than any Contract Securities
conform, and any Contract Securities, when so issued and
delivered and sold will conform, to the description thereof
contained in the Prospectus;
(ii) [IF THE OFFERED SECURITIES ARE PREFERRED STOCK] The
Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been validly
issued and are fully paid and nonassessable; any Contract
Securities, when issued, delivered and sold pursuant to Delayed
Delivery Contracts, will be validly issued, fully paid and
non-assessable; and the Offered Securities other than any
Contract Securities conform, and any Contract Securities, when so
issued, delivered and sold, will conform, to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities;
(ii) [IF THE OFFERED SECURITIES ARE COMMON STOCK] The
Offered Securities and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(iii) [IF THE OFFERED SECURITIES ARE CONVERTIBLE:] The
Offered Securities other than any Contract Securities are, and
any Contract Securities, when (if the Offered Securities are debt
securities) executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts or (if the Offered Securities are preferred
stock) when issued, delivered and sold pursuant to Delayed
Delivery Contracts, will be convertible into Common Stock of the
Company in accordance with (if they are debt securities) the
Indenture or (if they are preferred stock) their terms]; the
shares of Common Stock initially issuable upon conversion of the
Offered Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable;
the outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Common Stock;
11
(iv) [IF THE OFFERED SECURITIES ARE COMMON STOCK OR ARE
CONVERTIBLE INTO COMMON STOCK:] There are no contracts,
agreements or understandings known to such counsel between the
Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(v) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement)
in connection with the issuance or sale of the Offered Securities
by the Company, except such as have been obtained and made under
the Act and, [IF THE OFFERED SECURITIES ARE DEBT SECURITIES] the
Trust Indenture Act and such as may be required under state
securities laws;
(vi) The execution, delivery and performance of [IF THE
OFFERED SECURITIES ARE DEBT SECURITIES] the Indenture, the Terms
Agreement (including the provisions of this Agreement) and, [IF
THE OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED STOCK]
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and, [IF THE OFFERED SECURITIES ARE DEBT
SECURITIES OR PREFERRED STOCK] compliance with the terms and
provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(vii) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Act, and the registration statement
relating to the Registered Securities, as of its effective date,
the Registration Statement and the Prospectus, as of the date of
the Terms Agreement, and any amendment or supplement thereto, as
of its date, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; such counsel have no reason to believe
that such registration statement, as of its effective date, the
Registration Statement, as of the date of the Terms Agreement or
as of the Closing Date, or any amendment
12
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as
of the date of the Terms Agreement or as of such Closing Date, or
any amendment or supplement thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and such counsel do not know of any legal or governmental
proceedings required to be described in the Prospectus which are
not described as required or of any contracts or documents of a
character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus; and
(viii) The Terms Agreement (including the provisions of this
Agreement) and, [IF THE OFFERED SECURITIES ARE DEBT SECURITIES OR
PREFERRED STOCK] any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(e) The Representatives shall have received from _________,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, ______________________ may rely as to the
incorporation of the Company and all other matters governed by
___________________ law upon the opinion of ____________________
referred to above.
(f) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of which meets the requirements of subsection (a) of this
Section, except that the
13
specified date referred to in such subsection will be a date not more
than three business days prior to the Closing Date for the purposes of
this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
14
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered 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
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
15
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and [IF DEBT SECURITIES] the aggregate principal amount or [IF PREFERRED STOCK
OR COMMON STOCK] number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total [IF DEBT SECURITIES] principal amount or [IF PREFERRED STOCK OR
COMMON STOCK] number of shares of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate [IF
DEBT SECURITIES] principal amount or [IF PREFERRED STOCK OR COMMON STOCK] number
of shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total [IF DEBT SECURITIES] principal amount or [IF
PREFERRED STOCK OR COMMON STOCK] number of shares of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. [IF THE
OFFERED SECURITIES ARE DEBT SECURITIES OR PREFERRED STOCK] The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the [IF DEBT SECURITIES] principal amounts or [IF
PREFERRED STOCK] numbers of shares of the Offered Securities set forth opposite
their names in the Terms Agreement as a result of Delayed Delivery Contracts
entered into by the Company.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇
Plaza, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Secretary.
10. SUCCESSORS. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified
16
in the Terms Agreement and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
11. REPRESENTATION OF UNDERWRITERS. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. COUNTERPARTS. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF _______,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of _______ in The City of _________ in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby. As its authorized agent in the Borough of _____________ in The City of
_____________ upon which process may be served in any such suit or proceeding,
and agrees that service of process upon such agent, and written notice of said
service to the Company by the person serving the same to the address provided in
Section 9, shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. The Company further agrees to take
any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for a period of seven years
from the date of the Terms Agreement.
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By: ______________________
Its: ________________
[UNDERWRITER/S]
By: ______________________
Its: ________________
17
ANNEX I
DELAYED DELIVERY CONTRACT
[INSERT DATE OF INITIAL PUBLIC OFFERING]
▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
c/o [LEAD UNDERWRITER]
[Address of Lead Underwriter]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [IF ONE DELAYED CLOSING, INSERT--as of the date hereof, for
delivery on , [YEAR] ("Delivery Date"),]
[$]..............[shares]
--principal amount--of the Company's [INSERT TITLE OF SECURITIES]
("Securities"), offered by the Company's Prospectus dated , 19 and a
Prospectus Supplement dated , 19 relating thereto,
receipt of copies of which is hereby acknowledged, at-- % of the principal
amount thereof plus accrued interest, if any,--$ per share plus accrued
dividends, if any,--and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
PRINCIPAL AMOUNT
NUMBER
DELIVERY DATE OF SHARES
____________________________ ________
____________________________ ________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of at .M. on--the--such--Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive [IF DEBT ISSUE,
INSERT--fully registered] form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior
to--the--such--Delivery Date.
18
It is expressly agreed that the provisions for delayed delivery and payment are
for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not
at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total--principal amount--number of shares--of
the Securities less the--principal amount---number of shares--thereof covered by
this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
___________________________________________
(NAME OF PURCHASER)
BY ________________________________________
___________________________________________
(TITLE OF SIGNATORY)
___________________________________________
___________________________________________
(ADDRESS OF PURCHASER)
Accepted, as of the above date.
▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
By __________________________________
[INSERT TITLE]
19
▇▇▇▇ ▇▇▇▇▇▇▇▇
CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
, ____________
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due .
PRINCIPAL AMOUNT: $ .
INTEREST: [ % per annum, from ,[YEAR], payable
semiannually on and , commencing ,[YEAR], to
holders of record on the preceding or , as the case may
be.] [Zero coupon.]
MATURITY: , [YEAR].
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
,[YEAR]. Underwriters' fee is % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest
[,if any,] from ,[YEAR].
20
EXPECTED REOFFERING PRICE: % of principal amount, subject to
change by the [Representative[s] [Underwriters].
CLOSING: A.M. on ,[YEAR], at ,
in Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry
Only via DTC. The Offered Securities will trade in DTC's Same Day Funds
Settlement System.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to
the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments--and--, --stabilizing [and
passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [IF
PARAGRAPH REGARDING PASSIVE MARKET MAKING IS INCLUDED, INSERT--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [IF APPLICABLE, INSERT--; and (ii) the following
information in the prospectus supplement furnished on behalf of [INSERT NAME OF
UNDERWRITER]: [INSERT DESCRIPTION OF INFORMATION, SUCH AS MATERIAL RELATIONSHIP
DISCLOSURE UNDER THE CAPTION "UNDERWRITING" IN THE PROSPECTUS SUPPLEMENT].
If the Offered Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of the Terms
Agreement (e.g., type of funds specified under "Closing") and consider including
in the Terms Agreement such changes and additions to the Underwriting Agreement
as may be appropriate in the circumstances, e.g., expanding the blackout
provision in Section 4 to cover debt securities denominated in the currency in
which the Offered Securities are denominated, expanding Section 5(c)(iv) to
cover a banking moratorium declared by authorities in the country of such
currency, expanding Section 5(c)(v) to cover a change or prospective change in,
or governmental action affecting, exchange controls applicable to such currency,
and modifying Section 5(d) to permit a statement to the effect that enforcement
of the Indenture and the Offered Securities is subject to provisions of law
which may require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars and appropriate
exceptions as to any provisions requiring payment of additional amounts. Also
consider requiring an opinion of counsel for the Company confirming information
as to United States tax matters in the Prospectus and an opinion of foreign
counsel for the Company regarding such matters as foreign consents, approvals,
authorizations, licenses, waivers, withholding taxes, transfer or stamp taxes
and any information as to foreign laws in the Prospectus.
21
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By_________________________________
[INSERT TITLE]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
[IF NO CO-REPRESENTATIVE, USE FIRST
CONFIRMATION FORM. IF
CO-REPRESENTATIVE, USE SECOND.]
[LEAD UNDERWRITER]
By________________________________
[INSERT TITLE]
[Acting on behalf of itself and as
the Representative of the several
Underwriters.]
[LEAD UNDERWRITER]
_________________________________
_________________________________
[Acting on behalf of themselves and
as the Representatives of the
several Underwriters.]
By: [LEAD UNDERWRITER]
By______________________________
[INSERT TITLE]
22
SCHEDULE A
UNDERWRITER PRINCIPAL
----------- AMOUNT
------
$
Total
23
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
("COMPANY")
PREFERRED--COMMON--STOCK
TERMS AGREEMENT
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in Schedule
A hereto] [below] for their respective accounts, on and subject to the terms and
conditions of the Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 333- ) ("Underwriting Agreement"),
the following securities ("Offered Securities") on the following terms:
TITLE:
NUMBER OF SHARES:
( DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is $ per share of the Contract
Securities.]
PURCHASE PRICE: $ per share [IF PREFERRED STOCK ISSUE,
INSERT--plus accrued dividends[, if any,] from , 19 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
24
CLOSING: A.M. on , 19 , at
, in New York Clearing House (next day) funds.
UNDERWRITER[S']['S] COMPENSATION: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments--and--, --stabilizing [and
passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [IF
PARAGRAPH REGARDING PASSIVE MARKET MAKING IS INCLUDED, INSERT--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [IF APPLICABLE, INSERT--; and (ii) the following
information in the prospectus supplement furnished on behalf of [INSERT NAME OF
UNDERWRITER]: [INSERT DESCRIPTION OF INFORMATION, SUCH AS MATERIAL RELATIONSHIP
DISCLOSURE UNDER THE CAPTION "UNDERWRITING" IN THE PROSPECTUS SUPPLEMENT].(1/)
______________________
(1) () SPECIAL CARE SHOULD BE TAKEN TO ENSURE THAT THE DESCRIPTION OF THE
INFORMATION, INCLUDING CAPTION REFERENCES AND ANY REFERENCES TO PARTICULAR
PARAGRAPHS OR SENTENCES, MATCHES THE FINAL PROSPECTUS.
25
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
BY__________________________________
[INSERT TITLE]
THE FOREGOING TERMS AGREEMENT IS HEREBY CONFIRMED AND ACCEPTED AS OF THE DATE
FIRST ABOVE WRITTEN.
[IF NO CO-REPRESENTATIVE, USE FIRST CONFIRMATION FORM. IF
CO-REPRESENTATIVE, USE SECOND.]
[LEAD UNDERWRITER]
By______________________________
[INSERT TITLE]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
[LEAD UNDERWRITER]
______________________________________
______________________________________
[Acting on behalf of themselves and as
the Representatives of the several
Underwriters.]
By: [LEAD UNDERWRITER]
By______________________________
[INSERT TITLE]
26
SCHEDULE A
UNDERWRITER NUMBER OF
----------- SHARES
------
--------
--------
--------