Exhibit 1.1
FORM OF
MOTOROLA, INC.
(a Delaware corporation)
MOTOROLA CAPITAL TRUST I
(a Delaware business trust)
20,000,000 Trust Preferred Securities
Trust Originated Preferred Securities/SM/ ("TOPrS/SM/")
(Liquidation Preference $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
January __, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
c/o
Merrill ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Motorola Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (S)(S) 3801 et
seq.) and Motorola, Inc. (the "Company" and, together with the Trust, the
"Offerors"), confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter
---------------
/SM/ "Trust Originated Preferred Securities" and "TOPrS" are service marks of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
1
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ and ___________ are acting as representative (in such capacity, the
"Representatives") with respect to the issue and sale by the Offerors and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of the Trust's preferred securities (liquidation preference
$25 per preferred security) representing preferred undivided beneficial
interests in the assets of the Trust ("TOPrS" or the "Trust Preferred
Securities") set forth in said Schedule A.
The payment of periodic cash distributions with respect to the Trust
Preferred Securities and payments on liquidation or redemption with respect to
such Trust Preferred Securities will be each guaranteed by the Company on behalf
of the Trust (the "Preferred Securities Guarantee"), in each case only out of
funds held by the Trust, pursuant to the Preferred Securities Guarantee
Agreement (the "Preferred Securities Guarantee Agreement"), to be entered into
between the Company and a guarantee trustee (the "Guarantee Trustee"), and
entitled to the benefits of certain backup undertakings described in the
Prospectus (as defined below) with respect to the Company's agreement pursuant
to the Indenture (as defined below) to pay all expenses relating to
administration of the Trust (the "Undertakings"). The Trust Preferred
Securities and the related Preferred Securities Guarantee are referred to herein
as the "Offered Securities."
The Offerors understand that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its undivided common beneficial interests in the Trust's assets represented by
common securities (the "Common Securities") and will be used by the Trust to
purchase the unsecured junior subordinated deferrable interest debentures (the
"Subordinated Debentures") of the Company issued by the Company to the Trust.
The Trust Preferred Securities and the Common Securities for the Trust will be
issued pursuant to an amended and restated Declaration of Trust of the Trust
(the "Declaration"), among the Company, as Sponsor, _____________(the "Regular
Trustees"), ▇▇▇▇▇▇ Trust and Savings Bank, a ____________, as property trustee
(the "Property Trustee"), and First Union Bank of Delaware, a Delaware
corporation (the "Delaware Trustee" and, together with the Regular Trustees and
the Property Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
2
Debentures will be issued pursuant to an indenture (the "Indenture"), between
the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the "Debt Trustee").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. _________) for the
registration of up to a combination of $500,000,000 of (i) Trust Preferred
Securities, (ii) Preferred Securities Guarantees, and (iii) Subordinated
Debentures under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof under the 1933 Act. Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus relating to the offering of
the Offered Securities, in the form first furnished to the Underwriters by the
Company for use in connection with the offering of the Offered Securities, is
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of this Agreement; provided, further, that if the Offerors file a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement; and provided, further, that if
the Company elects to rely upon Rule 434 of the 1933 Act Regulations, then all
references to the "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the Registration Statement became
effective and any prospectus that omitted, as applicable, the Rule 430A
Information, the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness and
prior to the execution and
3
delivery of this Agreement. For purposes of this Agreement, all references to
the Registration Statement, Prospectus, Term Sheet or preliminary prospectus or
to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of this Agreement; and all references
in this Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as the case
may be, after the execution of this Agreement.
SECTION 1. Representations and Warranties.
(a) Each Offeror jointly and severally represents and warrants to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof (each such date being hereinafter referred to as a
"Representation Date") and agrees with each Underwriter as follows:
(i) Each of the Offerors meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration
4
Statement (including any Rule 462(b) Registration Statement) and any
amendments thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations. At the date
of the Prospectus and at the Closing Time (as defined below), neither the
Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter, or on behalf of any Underwriter by the Representatives,
expressly for use in the Registration Statement or the Prospectus. If the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, the
Offerors will comply with the requirements of Rule 434.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together and with the other information in the
Prospectus, at the time the Registration Statement and any amendments
thereof became or become effective under the 1933 Act and at the Closing
Time did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole have not
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its
5
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth, incorporated by
reference or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated or incorporated therein, there
has not been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding on the date of the most recent balance sheet included in the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan), any significant increase in the
long-term debt of the Company and its subsidiaries taken as a whole, or any
material adverse change, or any development which the Company has
reasonable cause to believe will involve a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, or, other than the
Company's regular quarterly dividend, any dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(iv) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to conduct its business as described in
the Prospectus with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
(v) The authorized capitalization is as set forth or incorporated by
reference in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(vi) The execution, delivery and performance of this Agreement, the
Declaration, the Indenture, the Preferred Securities, the Common
Securities, the Subordinated Debentures, the Preferred Securities
Guarantee, and the Preferred Securities Guarantee Agreement, and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or a default under, any
6
material contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party or by which
the Company is bound; nor will such action result in a violation of the
provisions of the Company's Restated Certificate of Incorporation or bylaws
of the Company, as amended, or any applicable law, rule, regulation,
judgment, order or administrative or court decree; and the Company has
corporate power and authority to purchase, own and hold the Common
Securities.
(vii) Other than (a) as set forth, incorporated by reference, or
contemplated in the Prospectus and (b) litigation incident to the kind of
business conducted by the Company and its subsidiaries, which in the case
of those items in (b) individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole, there are no legal
or governmental proceedings pending to which the Company and its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or its subsidiaries, the Company has reasonable cause to believe
would individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the sale
of the Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the Declaration, the Indenture or the
Preferred Securities Guarantee Agreement, except as may be required under
the 1933 Act or 1933 Act Regulations, the 1934 Act or 1934 Act Regulations,
the 1939 Act or state securities laws.
(ix) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Preferred Securities, the Common
Securities and the Declaration; the Trust is duly qualified to transact
business as a foreign company and is in good standing in any other
jurisdiction in which such qualification is necessary, except to the extent
that the
7
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus; the Trust is
and will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and the
Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(x) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial interests
in the assets of the Trust and will conform to all statements relating
thereto contained in the Prospectus; the issuance of the Common Securities
is not subject to preemptive or other similar rights; and at the Closing
Time all of the issued and outstanding Common Securities of the Trust will
be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xi) This Agreement has been duly authorized, executed and delivered
by each of the Offerors.
(xii) The Declaration has been duly authorized by the Company and, at
the Closing Time, will have been duly executed and delivered by the Company
and the Regular Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration will, at the Closing Time, be a valid and binding
obligation of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors rights generally or by general principles of equity (regardless
of whether enforcement is considered in a proceeding at law or in equity)
(the "Bankruptcy Exceptions") and will conform in all material respects to
all statements relating thereto in the Prospectus.
(xiii) The Preferred Securities Guarantee Agreement has been duly
authorized by the Company and, at the Closing Time will have been duly
executed and delivered by the Company, and, assuming due authorization,
execution and delivery of the
8
Preferred Securities Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and the
Preferred Security Guarantee and the Preferred Securities Guarantee
Agreement will conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xiv) The Trust Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth in Section 2, will be
validly issued and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the Trust, will be
entitled to the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus and such
description conforms to the provisions of the Declaration; the issuance of
the Trust Preferred Securities is not subject to preemptive or other
similar rights; and (subject to the terms of the Declaration) holders of
Trust Preferred Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit.
(xv) The Indenture has been duly authorized by the Company and, at
the Closing Time will have been duly executed and delivered by the Company,
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions; and the
Indenture will conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xvi) The Subordinated Debentures have been duly authorized by the
Company and, at the Closing Time, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions, will
be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to all statements
relating thereto in the Prospectus.
9
(xvii) The Company's obligations under the Preferred Securities
Guarantee are subordinate and junior in right of payment to all liabilities
of the Company and are pari passu with the most senior preferred stock
issued by the Company.
(xviii) The Subordinated Debentures are subordinated and junior in
right of payment to all "senior indebtedness" (as defined in the Indenture)
of the Company.
(xix) Each of the Regular Trustees is an employee of the Company and
has been duly authorized by the Company to execute and deliver the
Declaration; the Declaration has been duly executed and delivered by the
Regular Trustees and is a valid and binding obligation of each Regular
Trustee, enforceable against such Regular Trustee in accordance with its
terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xx) The Trust is not in violation of its Declaration or its
certificate of trust as filed with the State of Delaware (the "Certificate
of Trust"); the Trust is not in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust is a party or by which it may be bound, or to
which any of the property or assets of the Trust is subject; and the
execution, delivery and performance of this Agreement, the Declaration, the
Preferred Securities, the Common Securities, the Indenture, the
Subordinated Debentures, the Preferred Securities Guarantee Agreement and
the Preferred Securities Guarantee and the consummation of the transactions
contemplated herein and therein and compliance by the Offerors with their
respective obligations hereunder and thereunder have been duly authorized
by all necessary action (corporate or otherwise) on the part of the Trust
and do not and will not result in any violation of the Declaration or
Certificate of Trust and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Trust is a party or by which it may be bound or to which any of
its properties or assets may be subject, or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
10
jurisdiction over the Trust or any of its respective properties or assets.
(xxi) The Indenture, the Preferred Securities Guarantee Agreement and
the Declaration have each been duly qualified under the ▇▇▇▇ ▇▇▇.
(xxii) None of the Offerors is, and upon the issuance and sale of the
Offered Securities and the issuance of the Subordinated Debentures and the
Common Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxiii) Each Offeror has complied and will comply with the provisions
of Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Offered Securities shall be deemed a representation and warranty
by the Company as to the matters covered thereby to each Underwriter.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Offerors agree to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Offerors, at the price and on such
terms set forth in Schedule B, the number of Offered Securities set forth in
Schedule A opposite the name of such Underwriter.
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the offices of
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company, on
the third business day (unless postponed in accordance with the provisions of
Section 9) after the date hereof, unless the Offered Securities are priced after
4:30 p.m. New York time in which case such payment and delivery will be made on
the fourth business day following the date hereof (unless postponed in
accordance with the provisions of
11
Section 9), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company (such time and
date being referred to as a "Closing Time"). Payment shall be made to the Trust
by wire transfer of immediately available funds to a bank account designated by
the Company, against delivery to the Representatives for the respective accounts
of the Underwriters of the Offered Securities to be purchased by them. It is
understood that each Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Offered Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Offered Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time but such payment shall not relieve such Underwriter from its
obligations hereunder.
As compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Trust Preferred Securities
will ultimately be used to purchase the Subordinated Debentures of the Company,
the Company hereby agrees to pay at Closing Time to ▇▇▇▇▇▇▇ ▇▇▇▇▇, for the
accounts of the several Underwriters, a commission per Trust Preferred Security
set forth on Schedule B hereto. At the Closing Time, the Company will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
this Section 2 by wire transfer of immediately available funds to a bank account
designated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the account of the Underwriters.
(c) Certificates for the Offered Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least one business day before the Closing Time. The certificates for the
Offered Securities, which may be in temporary form, will be made available for
examination and packaging by the Representatives in New York City not later than
10:00 a.m. (Eastern Time) on the last business day prior to the Closing Time.
SECTION 3. Covenants. Each of the Offerors jointly and severally covenant
with the Representatives and with each Underwriter as follows:
(a) The Offerors, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations, if and as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, of (i) the effectiveness of any
post-effective
12
amendment to the Registration Statement or the filing of any supplement or
amendment to the Prospectus, (ii) the receipt of any comments on the
Registration Statement or the Prospectus from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Offerors will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Offerors will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Each Offeror will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b) of the 1933 Act Regulations) or any amendment,
supplement or revision to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(d) The Company will deliver to each of the Representatives two copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and, if
applicable, documents incorporated by reference into the Prospectus pursuant to
Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) and will also deliver to the
Representatives, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, as many conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (without exhibits)
13
as the Representatives may reasonably request. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company has delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Offerors hereby consent to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, prior to 1:00 p.m., New York City time, on the business day next
succeeding the date of this Agreement and from time to time during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Offered Securities as contemplated in this Agreement and
in the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Offered Securities any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to your counsel) so that, as so
amended or supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company will furnish to the
Representatives a reasonable number of copies of such amendment or supplement.
(g) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Offered Securities and the Subordinated Debentures for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representatives may designate; provided, however, that the Offerors shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction
14
in which it is not so qualified. In each jurisdiction in which the Offered
Securities have been so qualified, the Offerors will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required to complete the
distribution of the Offered Securities.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the ▇▇▇▇ ▇▇▇) covering a twelve-month period beginning, in each case,
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) Each Offeror will use or cause to be used the net proceeds received by
it from the sale of the Offered Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) The Company will use its best efforts to effect the listing of the
Offered Securities, prior to the Closing Time, on the New York Stock Exchange,
and to cause the Offered Securities to be registered under the 1934 Act.
(k) During a period of ___ days from the date of the Prospectus, the
Offerors and the Company's subsidiaries will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, pledge, issue, sell, offer or
contract to sell, grant or sell any option or contract for the sale or purchase
of, or otherwise transfer or dispose of, any Offered Securities, any
Subordinated Debentures, any securities substantially similar thereto, or any
securities convertible into or exercisable or exchangeable for Offered
Securities, Subordinated Debentures or any securities substantially similar
thereto, or file any registration statement under the 1933 Act with respect to
any of the foregoing.
(l) So long as any Offered Securities are outstanding, the Trust will
continue its existence in good standing as a business trust under the Delaware
Act with power and authority to own property and conduct its business as
described in the Prospectus and the Trust will remain duly qualified to transact
business as a foreign corporation in good standing in each jurisdiction in which
such qualification is necessary, except to the extent that the failure to so
qualify would not, singly or in the aggregate, materially adversely affect the
operations of the Trust.
(m) The Trust will make generally available to its security holders and to
the Representatives as soon as practicable, but not
15
later than 90 days after the period covered thereby, an earnings statement of
the Company (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve-month period beginning not later than the first
day of the Trust's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of the Offerors' obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the copying of this
Agreement, any agreement among Underwriters, the Indenture, the Declaration, the
Preferred Securities, the Common Securities, the Subordinated Debentures, the
Preferred Securities Guarantee Agreement and the Preferred Securities Guarantee
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Offered Securities, (iii) the
preparation, issuance and delivery of the certificates for the Offered
Securities to the Representatives, the Common Securities to the Company and the
Subordinated Debentures to the Trust, including any transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of such securities,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Offered Securities and the Subordinated Debentures
under securities laws in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky surveys, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectus, of any Term Sheet and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriters of copies of the Blue Sky surveys, (viii) the fees and expenses
of the Property Trustee, the Delaware Trustee, the Guarantee Trustee and the
Debt Trustee, including the fees and disbursements of their respective counsel,
(ix) any fees payable in connection with the rating of the Offered Securities,
(x) the fees and expenses incurred with respect to the listing of the Offered
Securities on the New York Stock Exchange, (xi) the filing fees incident to the
review, if any, by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Offered Securities, (xii) the cost of
qualifying the Trust Preferred Securities with The Depository Trust Company, and
(xiii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. Except as provided in this Section and in Sections 6 and 7, the
Underwriters will pay all of their own costs
16
and expenses, including fees and disbursements of their counsel, stock transfer
taxes on resale of any of the Offered Securities by them, and any advertising
expenses which they may incur.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 (other than Section 5(j)) or Section 9(a)(i) hereof,
the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of the Offered Securities.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Offered Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Company and the Offerors contained in Section 1 hereof, to the performance
by the Offerors of their covenants and other obligations hereunder, and to the
following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b)(or any required post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has elected
to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in accordance
with Rule 424(b)(7).
(b) At Closing Time, the Representative shall have received:
(i) The opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Counsel, of the Law Department of the Company, or another attorney
who is employed by the Company who is
17
acceptable to the Representatives (the "Company Counsel"), in form and
substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to conduct its
business as described in the Prospectus.
(2) The authorized capitalization of the Company is as set forth
or incorporated by reference in the Prospectus and all of the issued
and outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-
assessable.
(3) This Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Preferred Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company and, assuming it is
duly authorized, executed, and delivered by the Guarantee Trustee, is
a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(5) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution,
and delivery thereof by the Debt Trustee, is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(6) The Declaration has been duly authorized, executed and
delivered by the Company and duly executed and delivered by the
Regular Trustees and constitutes a valid and binding obligation of
each of the Company and the Trust, enforceable against the Company and
the Trust in accordance with its terms, except to the extent that the
enforcement thereof may be limited by the Bankruptcy Exceptions.
18
(7) The Subordinated Debentures are in the form established
pursuant to the Indenture, have been duly authorized, executed and
delivered by the Company and, when duly authenticated by the Debt
Trustee in the manner provided for in the Indenture and delivered
against payment therefor as provided in the Declaration, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and entitled to the
benefits provided by the Indenture, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(8) The Registration Statement (including any Rule 462(b)
Registration Statement) has been declared effective under the 1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by
Rule 424(b). To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been initiated or threatened
by the Commission.
(9) At the time the Registration Statement (including any Rule
462(b) Registration Statement) became effective and at the Closing
Time, the Registration Statement and the Prospectus (other than the
financial statements and other financial data and supporting schedules
included therein and in the documents incorporated by reference into
the Prospectus, as to which no opinion need be rendered) complied as
to form in all material respects with the applicable requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations thereunder and, if applicable, the Rule 434
Prospectus conforms to the requirements of Rule 434 of the 1933 Act
Regulations in all material respects; the documents incorporated by
reference into the Prospectus (other than the financial statements and
other financial data and supporting schedules included therein, as to
which no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the 1934 Act and the 1934 Act Regulations;
and to the best of such counsel's knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in
19
the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed
or incorporated by reference thereto and the descriptions thereof or
references thereto are correct.
(10) The information in the Prospectus under "Risk Factors,"
"Motorola Capital Trust I," "Description of the Preferred Securities,"
"Description of the Subordinated Debentures," "Description of the
Trust Guarantee," "Effect of Obligations under the Subordinated
Debentures and the Trust Guarantee" and the information contained in
the Registration Statement pursuant to Item 15, to the extent that
such information constitutes summaries of statutes, documents or legal
proceedings, the Company's Restated Certificate of Incorporation or
by-laws or the Declaration, has been reviewed by such counsel and is
correct in all material respects.
(11) The Common Securities, the Trust Preferred Securities, the
Subordinated Debentures, the Preferred Securities Guarantee, the
Declaration, the Indenture and the Preferred Securities Guarantee
Agreement conform to the descriptions thereof contained in the
Prospectus.
(12) To the best of such counsel's knowledge, other than as set
forth, incorporated by reference or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, other than
litigation incident to the kind of business conducted by the Company
and its subsidiaries, which litigation incident to the Company's
business individually and in the aggregate is not material to the
Company and its subsidiaries considered as a whole; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(13) No consent, approval, authorization, order, registration or
qualification of any court or governmental authority or agency is
required for the due authorization, execution or delivery by the
Company of this Agreement or for the performance by the Company of the
transactions contemplated by the Prospectus, this Agreement, the
Indenture, the Declaration, the Preferred Securities, the Common
Securities, the Subordinated
20
Debentures, the Preferred Securities Guarantee Agreement, and the
Preferred Securities Guarantee, other than under the 1933 Act, the
1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939
Act and the 1939 Act Regulations, which have already been made,
obtained or rendered, as applicable, or state securities laws.
(14) The execution and delivery of this Agreement, the
Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debentures and the Preferred Securities
Guarantee Agreement, the issuance and sale of the Preferred Securities
Guarantee and the Subordinated Debentures, the compliance by the
Company with all of the provisions of this Agreement, the Declaration,
the Subordinated Debentures, the Indenture and the Preferred
Securities Guarantee Agreement and the consummation of the
transactions contemplated herein, therein and in the Prospectus do not
and will not conflict with or constitute a breach of, or default
under, (1) the Restated Certificate of Incorporation or by-laws of the
Company; (2) any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound; or (3) any
applicable law, rule, regulation, judgment, order or administrative or
court decree known to such counsel.
(15) The Indenture, the Preferred Securities Guarantee Agreement
and the Declaration have each been duly qualified under the 1939 Act.
(16) Neither the Company nor the Trust is, nor upon the issuance
and sale of the Preferred Securities and the issuance of the
Subordinated Debentures and the Common Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will be, an "investment company" or a
company controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(17) Each of the Offerors meets the registrant requirements for
use of Form S-3 under the 1933 Act Regulations.
(18) To the best of such counsel's knowledge and information,
all of the issued and outstanding Common
21
Securities are directly owned by the Company free and clear of any
lien, encumbrance, equity or claim.
Such opinion of Company Counsel shall additionally state that nothing has
come to his or her attention that has caused him or her to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (other than the financial statements, financial
data and schedules included therein, as to which no belief need be expressed),
at the time the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (including the filing of the
Company's Annual Report on Form 10-K with the Commission) became effective or at
the Closing Time contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (other than the financial statements, financial data and
schedules included therein, as to which no belief need be expressed), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such opinion shall be
limited to the laws of the State of New York, the State of Illinois, the General
Corporation Law of the State of Delaware and the federal law of the United
States, and the rules and regulations thereunder.
At the Closing Time, the Representatives shall also have received the
opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Offerors, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, regarding such Federal tax, ERISA and other related
matters of the type ordinarily included in similar transactions or reasonably
requested by counsel for the Underwriters.
(ii) The opinion, dated as of the Closing Time, of ________________,
special Delaware counsel to the Offerors, in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect that:
(1) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act and all
filings required under the laws of the State of Delaware with respect
to the creation and valid existence of the Trust as a business trust
have
22
been made. Under the Delaware Act and the Declaration, the Trust
has the trust power and authority to own property and to conduct its
business, all as described in the Prospectus, to execute and deliver
and perform its obligations under this Agreement, the Trust Preferred
Securities and the Common Securities and to purchase and hold the
Subordinated Debentures.
(2) The Common Securities have been duly authorized by the
Declaration and are duly and validly issued undivided beneficial
interests in the assets of the Trust and, under the Delaware Act and
the Declaration, the issuance of the Common Securities is not subject
to preemptive or other similar rights.
(3) Under the Delaware Act, the certificate attached to the
Declaration as Exhibit A-1 is an appropriate form of certificate to
evidence ownership of the Trust Preferred Securities. The Trust
Preferred Securities have been duly authorized by the Declaration and
are duly and validly issued, and, subject to the qualifications set
forth herein, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The holders of the Trust
Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of
Delaware; and, under the Delaware Act and the Declaration, the
issuance of the Trust Preferred Securities is not subject to
preemptive or other similar rights. Such counsel may note that the
Trust Preferred Securities holders may be obligated, pursuant to the
Declaration, to (a) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers of
Trust Preferred Securities and the issuance of replacement Trust
Preferred Securities, and (b) provide security and indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Declaration.
(4) Under the Declaration and the Delaware Act, this Agreement
has been duly authorized by all necessary trust action on the part of
the Trust.
(5) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Delaware court or
Delaware governmental
23
authority or agency is necessary or required solely for the due
authorization, execution or delivery by the Trust of this Agreement or
for the performance by the Trust of the transactions contemplated
under the Prospectus, this Agreement, the Declaration, the Preferred
Securities and the Common Securities.
(6) The issuance and sale by the Trust of the Trust Preferred
Securities and the Common Securities, the purchase by the Trust of the
Subordinated Debentures, the execution, delivery and performance by
the Trust of this Agreement, the consummation by the Trust of the
transactions contemplated hereby and thereby and compliance by the
Trust with its obligations hereunder and thereunder do not violate (A)
any of the provisions of the Certificate of Trust or the Declaration
or (B) any applicable Delaware law or administrative regulation.
(7) The Declaration constitutes a valid and binding obligation of
the Company and the Trustees, and is enforceable against the Company
and the Trustees, in accordance with its terms.
(iii) The favorable opinion, dated as of Closing Time, of
__________________________, counsel for the Property Trustee, the Delaware
Trustee, the Debt Trustee and the Guarantee Trustee, in form and substance
satisfactory to counsel for the Underwriters to the effect that:
(1) ________________ is a national banking association with trust
powers, duly organized, validly existing and in good standing under
the laws of the United States with all necessary power and authority
to execute and deliver, and to carry out and perform its obligations
under the terms of the Declaration and the Preferred Securities
Guarantee Agreement.
(2) The execution, delivery and performance by the Property
Trustee of the Declaration and the execution, delivery and performance
by the Guarantee Trustee of the Preferred Securities Guarantee
Agreement have been duly authorized by all necessary corporate action
on the part of the Property Trustee and the Guarantee Trustee,
respectively. The Declaration and the Preferred Securities Guarantee
Agreement have been duly executed and delivered by the Property
Trustee and the Guarantee Trustee, respectively, and constitute the
legal, valid and binding obligations of the Property Trustee and the
24
Guarantee Trustee, respectively, enforceable against the Property
Trustee and the Guarantee Trustee, respectively, in accordance with
their terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions.
(3) The execution, delivery and performance of the Declaration
and the Preferred Securities Guarantee Agreement by the Property
Trustee and the Guarantee Trustee, respectively, do not conflict with
or constitute a breach of the Articles of Organization or Bylaws of
the Property Trustee and the Guarantee Trustee, respectively.
(4) No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the
execution, delivery or performance by the Property Trustee and the
Guarantee Trustee of the Declaration and the Preferred Securities
Guarantee Agreement.
(5) The Statements of Eligibility on Forms T-1 with respect to
each of the Property Trustee, the Debt Trustee, and the Guarantee
Trustee filed with the Commission as part of the Registration
Statement complied as to form in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
(6) The Declaration constitutes a valid and binding obligation of
the Property Trustee and the Delaware Trustee and is enforceable
against the Property Trustee and the Delaware Trustee in accordance
with its terms, except to the extent that the enforcement thereof may
be limited by the Bankruptcy Exceptions.
(iv) The opinion, dated as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, with respect to the matters
set forth in (1) (insofar as it relates to the existence and good standing
of the Company), (3) to (7) (it being understood that any opinion required
with respect to the Trust Preferred Securities or the Common Securities, as
the case may be, not being subject to preemptive or other similar rights of
the securityholders shall be limited to such rights arising by operation of
law or under the Declaration), (8), (9) (insofar as it relates as to
compliance of the Registration Statement and the Prospectus as to form),
(10) (solely as to the information in the Prospectus under "Description of
the Preferred Securities," "Description of Subordinated Debentures," and
"Description of the Trust Guarantee"), (11)
25
and the penultimate paragraph of subsection (b)(i) of this Section. In
giving such opinion, such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York, the
State of Illinois, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(c) (i) The Company and its subsidiaries considered as a whole shall have
not sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth, incorporated by reference or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus there
shall not have been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding at the date of the most recent balance sheet included in the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
(d) On or after the date of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such
organization shall have publicly announced that it has under
26
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities.
(e) You shall have received a certificate of the Vice Chairman and Chief
Executive Officer, the President or another senior officer acceptable to you of
the Company and of the Chief Financial Officer, Controller, Treasurer or
Assistant Treasurer of the Company, dated as of the Closing Time, to the effect
that (i) the Company and its subsidiaries shall not have sustained any loss or
interference with its business of the type specified in Section 5(c)(i) and
there shall not have occurred any change of the type specified in Section
5(c)(ii), (ii) there shall not have occurred any downgrading of the type
specified in Section 5(d), (iii) the applicable representations and warranties
in Section 1 are true and correct with the same force and effect as though
expressly made at and as of such Closing Time, (iv) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to such Closing Time, and (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(f) At the time of the execution of this Agreement, you shall have received
from KPMG Peat Marwick a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement or the Prospectus and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated by
reference into the Registration Statement or the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act
Regulations, as the case may be, or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in or
incorporated by reference into the Registration Statement or the Prospectus or
(B) at a specified date not more than three days prior to the date of this
Agreement, there has been any change in the capital stock of the Company (other
than
27
upon exercise of outstanding stock options or upon conversion of convertible
securities outstanding on the date of the most recent balance sheet included in
or incorporated by reference into the Prospectus or pursuant to the Company's
employee stock ownership plan or pursuant to the Company's stock purchase plans
or the Company's employee savings and profit sharing plan) or any increase in
the consolidated long term debt of the Company and its subsidiaries or any
decrease in consolidated net current assets or net assets as compared with the
amounts shown in the most recent balance sheet included in or incorporated by
reference into the Prospectus or, during the period from the date of the most
recent financial statements included in or incorporated by reference into the
Prospectus to a specified date not more than three days prior to the date of
this Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net sales, net earnings or net
earnings per share of the Company and its subsidiaries, except in all instances
for changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in or incorporated by reference into
the Registration Statement and Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(g) At Closing Time, the Representatives shall have received from KPMG Peat
Marwick a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(h) At Closing Time counsel for the Underwriters shall have been furnished
with such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Offered Securities, as
contemplated herein, and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Offerors
in connection with the issuance and sale of the Offered Securities and the
issuance of the Subordinated Debentures shall be reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
28
(i) At Closing Time, the Offered Securities shall have been approved for
listing, subject only to official notice of issuance, on the New York Stock
Exchange.
(j) If the Registration Statement or an offering of Offered Securities is
required to be and has been filed with the NASD for review, the NASD shall not
have raised any objection that remains unresolved at Closing Time with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) The Offerors agree jointly and severally to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be part of the Registration Statement, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based
29
upon any such untrue statement or omission or any such alleged untrue
statement or omission; provided that any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and further provided that this indemnity agreement does not apply to
any loss, liability, claim, damage or expense arising out of any untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus but eliminated or remedied in the Prospectus if a copy of
the Prospectus (excluding documents incorporated therein by reference) was not
delivered by you to the person asserting the claim arising from such untrue
statement or omission or such alleged untrue statement or omission, at or prior
to the time required by the ▇▇▇▇ ▇▇▇.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Offerors, each of the Company's directors, the Trustees, each of the Offerors'
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the
30
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. 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 elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Offerors and you shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Offerors are responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
31
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act shall have the same right to contribution
as you, and each director of the Company, the Trustees, each officer of the
Offerors who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Offerors.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Offerors, and shall
survive delivery of and payment for the Offered Securities.
SECTION 9. Termination of Agreement.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Time, if (i) the Company and its
subsidiaries considered as a whole shall have sustained since the date of the
latest financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth, incorporated by reference or contemplated in the Prospectus, or since the
respective dates as of which information is given in the Registration Statement
and the Prospectus there shall have been any change in the capital stock (other
than upon exercise of outstanding stock options or upon conversion of
convertible securities outstanding at the date of the most recent balance sheet
included in the Prospectus or pursuant to the Company's employee stock ownership
plan or pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case described
in this clause (i), is in your judgment so material
32
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Securities on the terms and in
the manner contemplated in the Prospectus, or (ii) there has occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the reasonable judgment
of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable or inadvisable to market the Offered Securities
or to enforce contracts for the sale of the Offered Securities, or (iii) a
suspension or material limitation in trading in the Company's Common Stock, the
Trust Preferred Securities or securities generally on the New York Stock
Exchange, or (iv) a general moratorium on commercial banking activities in New
York or Illinois has been declared by either Federal or state authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Offered
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), then the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters reasonably acceptable to the
Representatives, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Offered Securities to be
purchased on such date, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Offered Securities
33
to be purchased on such date pursuant to this Agreement, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Schmeideler; notices to
the Company or the Trust shall be directed to it at: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Offerors, and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Offered
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
34
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
35
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Agreement, along with all counterparts, will become a binding agreement between
the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By:
-----------------------------
Title: Authorized Officer
MOTOROLA CAPITAL TRUST I
By: Motorola, Inc. as Sponsor
By:
-----------------------
Title: Authorized Officer
CONFIRMED AND ACCEPTED
as of the date first above written:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-----------------------------
Title: Authorized Officer
For themselves and as Representatives
of the other Underwriters named in
Schedule A hereto
36
SCHEDULE A
Preferred Securities Commission
-------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
-------------------- ----------
A-1
SCHEDULE B
The Trust Preferred Securities shall have the following terms:
Title: ____ % Trust Originated Preferred Securities.
Ratings: ___- by Standard & Poor's; ___ by ▇▇▇▇▇'▇ Investment Services.
Liquidation Preference: $25 per Trust Preferred Security.
Distribution rate or formula: Annual rate of ____ % of the liquidation amount of
$25 per Trust Preferred Security.
Distribution payment dates: _______________________.
Regular record dates: Distributions on the Trust Preferred Securities will be
payable to the holders thereof as they appear on the books and records of the
Trust on the relevant record dates, which, as long as the Trust Preferred
Securities remain in book-entry only form, will be one Business Day prior to the
relevant payment dates, which payment dates correspond to the interest payment
dates on the Subordinated Debentures. In the event the Trust Preferred
Securities do not continue to remain in book-entry only form, the Regular
Trustees will have the right to select relevant record dates which will be,
subject to the requirements of any applicable exchange, at least one Business
Day, but less than 60 Business Days, prior to the relevant payment dates. In
the event that any date on which distributions are to be made on the Trust
Preferred Securities is not a Business Day, then payment of the distributions
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. A "Business Day" means
any day other than a day on which banking institutions in Chicago, Illinois or
New York, New York are authorized or required by law to close.
Stated maturity date: The Trust Preferred Securities do not have a stated
maturity date, but they will be redeemed upon the stated maturity of the
Subordinated Debentures.
Redemption provisions: If the Subordinated Debentures are redeemed, the Trust
must redeem Trust Securities on a pro rata basis having
B-1
an aggregate liquidation amount equal to the aggregate principal amount of
Subordinated Debentures so redeemed.
Listing requirements: The Trust Preferred Securities will be listed on the New
York Stock Exchange.
Fixed or Variable Price Offering: Fixed Price Offering
Purchase price per security: 100% of liquidation amount, plus accrued
Distributions, if any, from January ___, 1999.
Commissions payable to Underwriters: $____________
Form: Global Certificate
QIU Issues: N/A
B-2
The Subordinated Debentures shall have the following terms:
Title: ____ % Junior Subordinated Deferrable Interest Debentures.
Interest rate or formula: Each Subordinated Debenture will bear interest at the
rate of ____ % per annum from the original date of issuance.
Interest payment dates: _______________________.
Regular record dates: Interest is payable to the person in whose name such
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the Business Day preceding such interest payment date. If
the Subordinated Debentures do not remain in book-entry only form, the Company
has the right to select record dates which may not be less than fifteen days
prior to each interest payment date.
Stated maturity date: The Subordinated Debentures have a stated maturity date
of _________________, which may be extended at any time by the Company to any
date not later than _________________; provided, that at the time such election
is made and at the time of extension (i) the Company is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Company is not in default in the
payment of any interest or principal on the Subordinated Debentures, and (iii)
in the case of Subordinated Debentures held by the Trust, the Trust is not in
arrears on payments of distributions on the Trust Preferred Securities and no
deferred distributions are accumulated.
Redemption provisions: The Company has the right to redeem the Subordinated
Debentures, in whole or in part, from time to time, on or after
_________________, or at any time in whole but not in part in certain
circumstances upon the occurrence of a Tax Event as described under "Description
of the Trust Preferred Securities - Tax Event Redemption" in the Prospectus
dated January __, 1999, upon not less than 30 nor more 60 days' notice, at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date. If a partial redemption of the Trust Preferred Securities
resulting from a partial redemption of the Subordinated Debentures would result
in the delisting of the Trust Preferred Securities, the Company may only redeem
the Subordinated Debentures in whole.
Listing requirements: If Subordinated Debentures are distributed to the holders
of the Trust Preferred Securities, the Company shall use its best efforts to
have the Subordinated Debentures listed on
B-3
the New York Stock Exchange or on such other exchange as the Trust Preferred
Securities are then listed.
Fixed or Variable Price Offering: Fixed Price Offering
Form: Global Note
QIU Issues: N/A
B-4