▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT
Dated as of January 2, 1997
1. Introductory. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc., a Virginia corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities and warrants to purchase certain of its debt securities in an
aggregate principal amount expressed in U.S. dollars or in such foreign
currencies or currency units as the Company shall designate at the time of
offering. Such debt securities, warrants and debt securities subject to such
warrants, registered under the registration statement referred to in Section
2(a), are hereinafter collectively referred to as "Registered Securities".
Registered Securities involved in any offering referred to below are hereinafter
collectively referred to as "Securities", such debt securities that are
Securities are hereinafter referred to as "Purchased Debt Securities", warrants
to purchase debt securities that are Securities are hereinafter referred to as
"Debt Warrants", debt securities subject to warrants that are Securities are
hereinafter referred to as "Warrant Debt Securities", Purchased Debt Securities
and Warrant Debt Securities are hereinafter collectively referred to as "Debt
Securities" and Purchased Debt Securities and Debt Warrants are hereinafter
collectively referred to as "Purchased Securities". The Debt Securities will be
issued under an Indenture, dated as of December 2, 1996 (the "Indenture"),
between the Company and The Chase Manhattan Bank, as Trustee and the Debt
Warrants will be issued under a debt warrant agreement (the "Debt Warrant
Agreement"), between the Company and a bank or trust company, as Debt Warrant
Agent, specified in the Terms Agreement referred to in Section 3, in one or more
series or issues, which may vary as to interest rates, maturities, redemption
provisions, exercise prices, expiration dates, selling prices, currency or
currency units and other terms, with in each case all such terms for any
particular Registered Securities being determined at the time of sale.
Particular Purchased Securities will be sold pursuant to a Terms Agreement and
for resale in accordance with terms of offering determined at the time of sale.
The firm or firms which agree to purchase the Purchased Securities are
hereinafter referred to as the "Underwriters" of such Purchased 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 and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-16955), including a prospectus, relating
to the Registered Securities has been filed with the Securities and Exchange
Commission (the "Commission") and such amendments thereto as may have been
required to the date hereof have been filed and such registration statement 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 Securities and the terms of offering thereof, including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement or, if one or more
post-effective amendments shall have been filed with respect to such
registration statement, on the most recent effective date of such post-effective
amendments, such registration statement, as so amended, conformed in all
material respects to the requirements of the Securities Act of 1933 (the "Act"),
the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules and
regulations of the Commission (the "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
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make the statements therein not misleading, and, on the date of each Terms
Agreement referred to in Section 3 and on each Closing Date as defined in
Section 3, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and none 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.
3. Purchase and Offering of Securities. The obligation of the Underwriters to
purchase the Purchased Securities will be evidenced by an exchange of
telegraphic or other written communications (the "Terms Agreement") at the time
the Company determines to sell the Purchased 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 of
Purchased Debt Securities and the number of Debt Warrants to be purchased by
each Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Purchased Securities not already specified in the Indenture or the
Debt Warrant Agreement, as the case may be, including, but not limited to,
interest rate, maturity, any redemption provisions and any sinking fund
requirements, the exercise price of the Debt Warrants to be purchased, the
principal amount of Warrant Debt Securities issuable upon exercise of one such
Debt Warrant, the date after which such Debt Warrants are exercisable, the
expiration date thereof and the date, if any, such Debt Warrants are detachable
and whether any of the Purchased Debt Securities or Debt Warrants 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 Representatives 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 Securities. The obligations of the Underwriters
to purchase the Purchased Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Purchased Securities for
sale as set forth in the Prospectus. The Purchased Securities delivered to the
Underwriters on the Closing Date will be in fully registered or bearer form with
respect to any Debt Securities, and in fully registered form with respect to
Debt Warrants, in each case in such denominations and numbers and registered in
such names as the Underwriters may request.
If the Terms Agreement provides for sales of Purchased Debt Securities or Debt
Warrants pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Purchased Debt Securities or Debt
Warrants 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 of Purchased Debt Securities
and number of Debt Warrants 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 Securities to be purchased by the several
Underwriters and the aggregate principal amount of Purchased Debt Securities and
number of Debt Warrants, as the case may be, to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount of Purchased Debt
Securities or number of Debt Warrants set forth opposite each Underwriter's name
in such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the Purchased Debt Securities and Debt Warrants
that are the Contract 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
2
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 Securities:
(a) The Company will advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will afford
the Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company will also advise the Representatives
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.
(b) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Act, 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 prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) As soon as practicable, but not later than 18 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 most recent 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 (including, at the option of the Company,
Rule 158 of the Rules and Regulations under the Act).
(d) The Company will furnish to the Representatives copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement and all amendments and supplements to
such documents, in each case as soon as available, and copies of the Prospectus
and all amendments and supplements to the Prospectus not later than 10:00 A.M.,
New York City time, on the day following the date thereof. The Company will
furnish each of such documents in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities for sale
and the determination of their eligibility for investment under the laws of such
jurisdictions within the United States as the Representatives designate and will
continue such qualifications in effect so long as required for the distribution;
provided that the Company will not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action which would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject.
(f) 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
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on
Form 8-K and definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 (the "Exchange Act") or mailed to
stockholders, and (ii) from time to time, such other information concerning the
Company as the Representatives may reasonably request.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters for any
expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives
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may designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Securities, for the
filing fee of the National Association of Securities Dealers, Inc. relating to
the Registered Securities and for expenses incurred in distributing the
Prospectus, any preliminary prospectuses and any preliminary prospectus
supplements to Underwriters.
(h) For a period beginning at the time of execution of the Terms Agreement and
ending on the Closing Date, if any Debt Securities are being issued, without the
prior consent of the Representatives, the Company will not offer or contract to
sell or, except pursuant to a commitment entered into prior to the date of the
Terms Agreement, sell or otherwise dispose of any debt securities denominated in
the currency or currency unit in which the Securities are denominated and issued
or guaranteed by the Company and having a maturity of more than one year from
the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Purchased 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, or
counsel for the Underwriters, shall have received a letter of Coopers & ▇▇▇▇▇▇▇
L.L.P., confirming that they are independent certified public accountants within
the meaning of the Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
(i) in their opinion, the financial statements and schedules of the Company
audited by them and included in the prospectus contained in the registration
statement relating to the Registered Securities, as amended at the date of such
letter, comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement on Auditing Standards ▇▇. ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇ ▇▇. ▇▇") on any unaudited interim condensed
consolidated financial statements of the Company included in such prospectus,
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 interim condensed
consolidated financial statements, if any, of the Company included in such
prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Quarterly Reports
on Form 10-Q and the related published Rules and Regulations or (B) that any
material modifications should be made for them to be in conformity with
generally accepted accounting principles;
(iii) on the basis of a reading of any unaudited pro forma condensed combined
financial statements of the Company included in such prospectus, 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 the unaudited pro forma condensed combined financial
statements included in such prospectus do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments, if any, have not been properly applied
to the historical amounts in the compilation of those statements; and
(iv) they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information contained in such
prospectus (in each case to the extent that such dollar amounts, percentages and
other financial information are obtained from accounting records that are
subject to the internal control structure, policies and procedures of the
Company's accounting system or are derived directly from such accounting records
by analysis or computation) with the results obtained from procedures specified
in such letter and have found such dollar amounts,
4
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 such prospectus shall be deemed included in such prospectus for
purposes of this subsection.
(b) 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 in the capital stock or long-term debt of the Company
and its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which is, in
the reasonable judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus; (ii) any downgrading in the rating of the Company's debt securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), and no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of such debt securities; (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 the New York Stock Exchange or
any suspension of trading of any securities of the Company on any United States
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by Federal or New York authorities, or the authorities of any country in whose
currency any Purchased Debt Securities or Debt Warrants are denominated under
the applicable Terms Agreement; (v) any outbreak or escalation of major
hostilities in which the United States or any country in whose currency any
Purchased Debt Securities or Debt Warrants are denominated under the applicable
Terms Agreement is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities; or (vi) any action by any governmental authority or any change, or
any development involving a prospective change, involving currency exchange
rates or exchange controls, which makes it impracticable or inadvisable in the
reasonable judgment of the Representatives to proceed with the public offering
or delivery of the Securities on the terms and in the manner contemplated in the
Prospectus.
(d) The Representatives shall have received an opinion, dated the Closing
Date, of Hunton & ▇▇▇▇▇▇▇▇, 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 Commonwealth of Virginia, 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 it owns or
leases substantial properties or in which the conduct of its business requires
such qualification and in which the failure to so qualify would have a material
adverse effect on the Company;
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇ International Inc. and Kraft
Foods, Inc. have been duly incorporated and are existing corporations in good
standing under the laws of their respective jurisdictions of incorporation,
with corporate power and authority to own their respective properties and
conduct their respective businesses as described in the Prospectus; all
outstanding shares of capital stock of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇ International Inc. and Kraft Foods, Inc. are owned by the Company, free
and clear of any lien, pledge and encumbrance or claim of any third party;
(iii) the Indenture and any Debt Warrant Agreement have been duly authorized,
executed and delivered by the Company; the Indenture has been duly qualified
under the Trust Indenture Act; the Securities have been duly authorized; the
Purchased Securities other than any Contract Securities have been duly executed,
authenticated, issued and delivered; the Indenture, any Debt Warrant Agreement
and the Securities other than any Warrant Debt Securities and any Contract
Securities constitute, and
5
any Warrant Debt Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to any Debt Warrant
Agreement, 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 the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, to
general equity principles and any implied covenant of good faith and fair
dealing; and the Securities other than any Warrant Debt Securities and any
Contract Securities conform, and any Warrant Debt Securities and any Contract
Securities, when so issued and delivered and sold, will conform, to the
description thereof contained in the Prospectus;
(iv) 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 Purchased
Securities by the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under state
securities laws;
(v) the execution, delivery and performance of the Indenture, the Terms
Agreement (including the provisions of this Agreement), any Debt Warrant
Agreement, and any Delayed Delivery Contracts and the issuance and sale of the
Securities and 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, the charter or by-laws of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇ International Inc. or Kraft Foods, Inc., or, to the
knowledge of such counsel, the charter or by-laws of any other subsidiary of the
Company, 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, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(vi) the Registration Statement has become effective under the Act, and, to
the knowledge of such counsel, 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 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, or
any amendment or supplement thereto, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto
contains any untrue statement of a material fact or omits 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 or any such amendment or supplement;
and
(vii) the Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts have been duly authorized, executed and delivered by
the Company.
6
In rendering such opinion, Hunton & ▇▇▇▇▇▇▇▇ may state that (1) in clause (iii)
with respect to the validity and enforceability of the Indenture, any Debt
Warrant Agreement and the Securities, and in clause (iv) and in clause (v) with
respect to any statute, rule, regulation or order of any governmental agency,
body or court and the power and authority of the Company to authorize, issue and
sell the Securities, such counsel has assumed that under the laws of any country
in whose currency (or whose currency is a component currency of a currency unit
in which) any Securities are denominated or payable, if other than in U.S.
dollars, or of any other governmental authority having jurisdiction over any
such currency unit, that no consent, approval, authorization, or order of, or
filing with any governmental agency, body or court is required for the
consummation of the transactions contemplated hereunder in connection with the
issuance and sale of the Securities and compliance with the terms and provisions
thereof will not result in any breach or violation of any of the terms and
provisions in any statute, rule, regulation or order of any governmental agency
or body or any court, and (2) in clause (iii) with respect to the enforceability
of the Indenture, no opinion is expressed with respect to Section 516 thereof.
Such counsel may note that (a) a New York statute provides that with respect to
a foreign currency obligation a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (b) with respect to a
foreign currency obligation a United States Federal court in New York may award
judgment in United States dollars, provided that such counsel expresses no
opinion as to the rate of exchange such court would apply.
(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
Securities, the Registration Statement, the Prospectus and other related matters
as they 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 Virginia law
upon the opinion of Hunton & ▇▇▇▇▇▇▇▇ 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 in the financial position or results of
operation of the Company and its subsidiaries 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 Coopers & ▇▇▇▇▇▇▇ L.L.P., which reconfirms the matters set forth in their
letter delivered pursuant to subsection (a) of this Section and states in effect
that:
(i) in their opinion, any financial statements or schedules examined by them
and included in the Prospectus and not covered by their letter delivered
pursuant to subsection (a) of this Section comply in form in all material
respects with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) on the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, on any unaudited interim condensed
consolidated financial statements of the Company included in the Prospectus and
not covered by their letter delivered pursuant to subsection (a) of this
Section, reading 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 interim condensed consolidated financial statements of the
Company, if any, included in the Prospectus do not comply as to form in all
material respects with the
7
applicable accounting requirements of the Act and the related published Rules
and Regulations or require any material modifications to be made for them to be
in conformity with generally accepted accounting principles;
(B) at the date of the latest available consolidated balance sheet of the
Company read by such accountants, and at a subsequent specified date not more
than three business days prior to the Closing Date, there was any decrease in
the outstanding common stock, or consolidated earnings reinvested in the
business of the Company other than any decrease resulting from the declaration
of regular quarterly cash dividends, or any issuance or assumption of long-term
debt by the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇ International
Inc., Kraft Foods, Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation (exclusive of any
short-term borrowings reclassified as long-term based upon the Company's ability
and intention to refinance these short-term borrowings on a long-term basis),
and, at the date of the latest available consolidated balance sheet of the
Company read by such accountants, there was any decrease in consolidated net
current assets or net assets, all as compared with amounts shown on or included
in the latest balance sheet of the Company included in the Prospectus; or
(C) for the period from the date of the latest consolidated statement of
earnings of the Company included in the Prospectus to the date of the latest
available consolidated statement of earnings of the Company read by such
accountants there were any decreases, as compared with the corresponding period
of the previous year, in consolidated operating revenues, operating income, net
earnings or the historical ratio of earnings to fixed charges of the Company and
consolidated subsidiaries;
except in all cases set forth in clauses (B) and (C) above for issuances or
assumptions or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter;
(iii) with respect to the unaudited capsule information of the Company, if
any, included in the Prospectus:
(A) on the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71 on the unaudited interim condensed
consolidated financial statements of the Company from which such unaudited
capsule information was derived, reading such unaudited capsule information,
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:
(1) the amounts contained in the unaudited capsule information included in the
Prospectus do not agree with the amounts set forth in the unaudited interim
condensed consolidated financial statements of the Company from which such
amounts were derived; and
(2) the amounts contained in the unaudited capsule information included in the
Prospectus were not determined on a basis substantially consistent with that of
the corresponding financial information in the latest audited financial
statements of the Company included in the Prospectus; or
(B) if the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in SAS
No. 71 have not been performed on the unaudited interim condensed consolidated
financial statements of the Company from which such unaudited capsule
information was derived, they have:
(1) read the unaudited capsule information and agreed the amounts contained
therein with the Company's accounting records from which it was derived; and
(2) inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether the unaudited capsule information was
determined on a basis substantially consistent with that of the corresponding
financial information in the latest audited financial statements of the Company
included in the Prospectus; and
8
(iv) they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information included in the Prospectus
and not covered by their letter delivered pursuant to subsection (a) of this
Section (in each case to the extent that such dollar amounts, percentages and
other financial information are obtained from accounting records that are
subject to the internal control structure, policies and procedures of the
Company's accounting system or are derived directly from such accounting records
by analysis or computation) with the results obtained from 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 the
purposes of this subsection.
(h) The Representatives shall have received, so long as financial statements
audited by any independent accountants for or with respect to any entity
acquired by the Company are included in the Prospectus, a letter, dated the
Closing Date, of such accountants confirming that as of a specified date
immediately prior to such acquisition and during the period covered by the
financial statements on which they reported, they were independent accountants
with respect to such entity within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the consolidated financial statements audited by them
and included in the Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published Rules and Regulations, with respect to Registration Statements
on Form S-3; and
(ii) on the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, 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 the
unaudited financial statements of such entity at any date and for any period
ending on or prior to the date of the latest unaudited balance sheet of such
entity 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 for
them to be in conformity with generally accepted accounting principles.
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.
(i) The Representatives shall have received from counsel, satisfactory to the
Representatives, such opinion or opinions, dated the Closing Date, with respect
to compliance with the laws of any country, other than the United States, in
whose currency Purchased Debt Securities or Debt Warrants are denominated, the
validity of the Securities, the Prospectus and other related matters as they 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.
(j) If applicable to the offering of any Securities, the Representatives shall
have received an opinion from ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., special tax
counsel for the Company, dated the Closing Date, confirming their opinion as to
United States tax matters set forth in the Prospectus.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
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
9
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; and provided further that as to any preliminary
prospectus this indemnity agreement shall not inure to the benefit of any
Underwriter or any person controlling that Underwriter on account of any loss,
claim, damage or liability arising from the sale of Purchased Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such preliminary prospectus was corrected in the Prospectus, unless such
failure resulted from non-compliance by the Company with Section 4(d). For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in a preliminary
prospectus or the Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response to a written
request therefor.
(b) Each Underwriter will 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.
(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 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 (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
10
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in 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 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.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Purchased Securities under the Terms Agreement and
the aggregate amount of the Purchased Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the aggregate amount of the Purchased Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Purchased
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under this
Agreement and the Terms Agreement, to purchase the Purchased Securities that
such defaulting Underwriters agreed but failed to purchase. If any Underwriter
or Underwriters so default and the aggregate amount of the Purchased Securities
with respect to which such default or defaults occur exceeds 10% of the
aggregate amount of the Purchased Securities and arrangements satisfactory to
the Representatives and the Company for the purchase of such Purchased
Securities by other persons are not made within 36 hours after such default,
such 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. As used in this Section only, the
"aggregate amount" of Purchased Securities shall mean the aggregate principal
amount of any Purchased Debt Securities plus the public offering price of any
Debt Warrants included in the relevant offering of Purchased Securities. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the amount of Purchased Debt
11
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
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 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 Purchased Securities. If the obligations of the Underwriters
with respect to any offering of Securities are terminated pursuant to Section 7
or if for any reason the purchase of the Purchased Securities by the
Underwriters under a Terms Agreement 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 for any reason the purchase of
the Purchased Securities by the Underwriters is not consummated other than
because of the termination of this Agreement pursuant to Section 7 or a failure
to satisfy the conditions set forth in Section 5(c), the Company shall reimburse
the Underwriters, severally, for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the 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 addresses 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President, Associate General Counsel
and Corporate Secretary.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in Terms Agreements and
their respective successors and the officers and directors and controlling
persons referred to in Section 5, and no other person will have any right or
obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
12
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M., New York
time, on .......... ........, 19....*.)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
c/o [Insert name and address of lead Underwriter]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc., a
Virginia corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert-as of the date hereof, for delivery
on , 19 ("Delivery Date"),]
$........................................
principal amount of the Company's [Insert title of debt securities] ("Debt
Securities") and
........................................
of the Company's [Insert title of warrants] ("Debt Warrants") (collectively, the
"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 of the Debt
Securities plus accrued interest, 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, Debt Securities and Debt Warrants in the
principal amounts and number, respectively, set forth below:
Principal Amount Number
of Debt of Debt
Delivery Date Securities Warrants
------------- ---------------- --------
............. ................ ........
............. ................ ........
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 fully registered
form and in such denominations or numbers 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.
------
* Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
13
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 of the Debt Securities less the
principal amount 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 of the opinion 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.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
By ..
(Insert Title)
14
▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
("Company")
Debt Securities and Warrants to Purchase
Debt Securities
TERMS AGREEMENT
, 199
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Senior Vice President and Chief Financial Officer
Dear Sirs:
On behalf of the several Underwriters named in Schedule A hereto and for their
respective accounts, we offer to purchase, on and subject to the terms and
conditions of the Underwriting Agreement relating to Debt Securities and
Warrants to Purchase Debt Securities dated as of January 2, 1997 ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
Debt Securities
Title:
Principal Amount: $
Interest Rate: % from , 199 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Optional Redemption:
Sinking Fund:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %
Purchase Price: %, plus accrued interest, or amortized original issue
discount, if any, from 19 .
Expected Reoffering Price:
Debt Warrants
Number of Debt Warrants to be issued:
Debt Warrant Agreement:
Form of Debt Warrants: Registered
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each $ principal amount of Debt
Securities:]
[Detachable Date:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price of Debt Warrants:
Expected Reoffering price: $
Purchase price: $
Title of Warrant Debt Securities:
Principal amount of Warrant Debt Securities purchaseable upon exercise of one
Debt Warrant:
Interest Rate: % from , 199 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Optional Redemption:
Sinking Fund:
------------
Names and Addresses of Representatives:
The respective principal amounts of the Debt Securities and number of Debt
Warrants 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 Closing will take place at A.M., New York City time, on ,
199 , at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇.
The Securities will be made available for checking and packaging at the office
of The Chase Manhattan Bank at least 24 hours prior to the Closing Date.
Please signify your acceptance by signing the enclosed response to us in the
space provided and returning it to us.
Very truly yours,
SCHEDULE A
DEBT SECURITIES
Underwriter Principal Amount
----------- ----------------
DEBT WARRANTS
Number of Debt
Underwriter Warrants
----------- --------------