Exhibit 1.1
▇▇▇▇▇▇ ELECTRONICS CORPORATION
FORM OF DEBT SECURITIES PURCHASE AGREEMENT
------------------------------------------
[DATE]
Name(s) of Managing Underwriter
Address(es) of Managing Underwriter
Ladies and Gentlemen:
▇▇▇▇▇▇ Electronics Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters listed on Schedule I
hereto (the "Underwriters") $___________ aggregate principal amount at maturity
of its ___% [Senior] [Subordinated] Notes due ____ (the "Firm Notes"). The Firm
Notes are to be issued pursuant to an indenture (the "Indenture") between the
Company and ______________, as trustee (the "Trustee"). [The Company also
proposes to issue and sell to the several Underwriters not more than $_________
aggregate principal amount at maturity of the Company's ___% [Senior]
[Subordinated] Notes due __________ (the "Option Notes") to cover overallotments
if, and to the extent, such option is exercised pursuant to the right to
purchase such Option Notes granted in Section 2 hereof.] The Firm Notes and the
Option Notes are hereinafter referred to as the "Notes."
The Company meets the requirements for the use of Form S3 under the
Securities Act of 1933, as amended (the "Act"), and has prepared and filed with
the Securities and Exchange Commission (the "Commission"), pursuant to the Act
and the rules and regulations promulgated by the Commission thereunder (the
"Regulations"), and the Trust Indenture Act of 1939, as amended (the "TIA"), a
registration statement on Form S-3 (Registration No. 333-78259), including the
related Base Prospectus (as defined below) or prospectuses, covering the
registration of, among other securities, the Notes under the Act, and the
offering thereof from time to time in accordance with Rule 415 of the Act. Such
registration statement has been declared effective by the Commission. The
Company will prepare and file with the Commission, pursuant to Rules 415 and
424(b)(2), (3) or (5), a prospectus supplement to the form of prospectus
included in such registration statement reflecting the terms of the Notes and
the terms of the offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the Notes and the
offering thereof and, except to the extent the Underwriters shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time (as defined below) or, to the
extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus (as defined below)) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
The terms which follow, when used in this Agreement, shall` have the
meanings indicated:
(i) "Effective Date" means the date that the Registration Statement
and any post-effective amendment or amendments thereto are declared
effective by the Commission.
(ii) "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
(iii) "Base Prospectus" shall mean the prospectus referred to above
contained in the Registration Statement relating to all offerings of
securities under the Registration Statement.
(iv) "Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Notes and the
offering thereof and is used prior to filing of the Final Prospectus.
(v) "Final Prospectus" shall mean the prospectus supplement
relating to the Notes that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus.
(vi) "Registration Statement" shall mean the registration statement
referred to above, as last amended prior to the time the same was declared
effective by the Commission, including all exhibits and schedules thereto
and all documents (including financial statements, financial schedules and
exhibits) incorporated therein by reference.
(vii) "Rule 415," "Rule 424" and "Regulation S-K" refer to such rules
or regulations under the Act.
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the effective date of the
Registration Statement, or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, except that
any such documents shall be deemed to be modified or superseded to the extent
that a statement contained in such Base Prospectus, Preliminary Prospectus or
Final Prospectus or in any other subsequently filed document that also is or is
deemed to be incorporated by reference therein modifies or supersedes such
statement (all such documents being hereinafter referred to as the "Incorporated
Documents").
The Company understands that the Underwriters propose to make a public
offering of their respective portion of the Notes on the terms and in the manner
set forth in the Final Prospectus, as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
2
1. Representations and Warranties of the Company.
---------------------------------------------
(a) The Company represents and warrants to, and agrees with, the
Underwriters as follows:
(i) The Registration Statement has become effective under the Act;
no stop order suspending the effectiveness of the Registration Statement is
in effect; and no proceedings for such purpose are pending before or, to
its knowledge, threatened by the Commission.
(ii) On the Effective Date, and at all times subsequent thereto and
including the Closing Date, or the Option Closing Date, if any (each as
defined below), and during such longer period as the Final Prospectus may
be required to be delivered in connection with sales by the Underwriters or
a dealer, and during such longer period until any post-effective amendment
to the Registration Statement becomes effective, the Registration Statement
(including any registration statement filed with the Commission pursuant to
Rule 462(b)) and the Final Prospectus (as amended or supplemented if the
Company shall have filed with the Commission an amendment or supplement
thereto) complied, and will comply, in all material respects with the
applicable provisions of the Act and the Regulations, and did not, and will
not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements made therein (in the case of the Base Prospectus,
Preliminary Prospectus or Final Prospectus, in light of the circumstances
under which they were made) not misleading. No representation and warranty,
however, is made in this paragraph (a)(1)(ii) with respect to written
information contained in or omitted from the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Company by or on behalf of you with respect to
the Underwriters and the plan of distribution of the Notes expressly for
use in connection with the preparation thereof.
(iii) Each of the Incorporated Documents, when the same was first
filed with the Commission, complied in all material respects with the
applicable provisions of the Act, the Regulations, the Exchange Act and the
regulations promulgated thereunder or the TIA, as applicable, and any
further documents so filed and incorporated by reference will, when they
are filed with the Commission, comply in all material respects with the
applicable provisions of the Act, the Exchange Act or the TIA and such
regulations. None of such filed documents when they were filed (or, if an
amendment with respect thereto was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of circumstances under which they were made,
not misleading, and no such further document, when it is filed with the
Commission, will contain an untrue statement of a material fact required
3
to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(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 own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
as shall be described in the Final Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or on the results
of operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect").
(v) Each significant subsidiary (as such term is defined in Rule
405 of the Regulations) (the "Significant Subsidiaries") of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and as
shall be described in the Final Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have, singly or in the aggregate,
a Material Adverse Effect. All of the issued and outstanding shares of
capital stock of each of the Significant Subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable and are
owned by the Company, directly or indirectly, and in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements and voting trusts ("Liens"), other than as set
forth in the Registration Statement and as shall be described in the Final
Prospectus. Except as may be set forth in the Final Prospectus, there are
no outstanding rights, subscriptions, warrants, calls, options or other
agreements of any kind to which the Company is a party with respect to the
capital stock of any Significant Subsidiary.
(vi) 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 and are owned of record by General Motors Corporation, a
Delaware corporation. Except as may be set forth in the Final Prospectus,
there are no outstanding rights, subscriptions, warrants, calls, options or
other agreements of any kind to which the Company is a party with respect
to its capital stock.
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated
4
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the results of operations, business [or
business prospects] of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Change"), (B) there have been no transactions entered
into by the Company or any of its Significant Subsidiaries, other than
those in the ordinary course of business, which are material with respect
to the condition, financial or otherwise, or to the results of operations,
business [or business prospects] of the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(viii) The Company has the corporate power and authority to enter into
and perform its obligations under this Agreement and the Indenture, and to
issue, sell and deliver the Notes. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The Notes have been duly authorized by the Company. The Notes
will, when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and, when sold and paid for as provided in
this Agreement, constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The Notes will conform in all material respects to the description
thereof which shall be contained in the Final Prospectus under the heading
"Description of Debt Securities."
(x) The Indenture has been duly authorized by the Company. The
Indenture will, when executed (assuming due execution by the Trustee),
constitute a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The Indenture will conform in all material respects to the
description thereof which shall be contained in the Final Prospectus under
the heading "Description of Debt Securities."
(xi) The execution and delivery by the Company of, and the
performance of its obligations under, this Agreement, the Indenture and the
Notes, and the issuance, authentication and sale of the Notes will not (1)
conflict with the certificate of incorporation or bylaws of the Company or
any of its Significant
5
Subsidiaries, or (2) constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject, or (3) violate any applicable law,
administrative regulation or administrative or court decree, in the case of
Clauses (2) and (3) , the effect of which, singly or in the aggregate,
would have a Material Adverse Effect.
(xii) Except as described in the Registration Statement and as shall
be described in the Final Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Significant Subsidiaries,
which would, singly or in the aggregate, result in any Material Adverse
Change or which would materially and adversely affect the consummation of
this Agreement or the performance by the Company of the Indenture or the
Notes; all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is the subject which are not disclosed in the
Registration Statement or shall be described in the Final Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial or
otherwise, or to the results of operations, business or business prospects
of the Company and its Significant Subsidiaries considered as one
enterprise; and there have been no material developments with respect to
any action, suit or proceeding, whether or not such action, suit or
proceeding is described in the Registration Statement or shall be described
in the Final Prospectus, which, singly or in the aggregate, would result in
a Material Adverse Change.
(xiii) Deloitte & Touche LLP, the accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the Regulations.
(xiv) The financial statements, including the notes thereto, included
in or incorporated by reference in the Registration Statement and the Final
Prospectus present fairly in all material respects the financial position
of the Company and its subsidiaries and of the Company's predecessors as of
the dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement and as
shall be stated in the Final Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis.
(xv) The pro forma financial information of the Company and its
--- -----
subsidiaries and of the Company's predecessors included in or incorporated
by
6
reference in the Final Prospectus presents fairly in all material respects
the information shown therein, and has been prepared on the basis described
in the Final Prospectus.
(xvi) The Indenture conforms in all material respects with the
requirements of the TIA applicable to indentures to be qualified
thereunder.
[(xvii) Except as set forth in the Registration Statement or as shall
be described in the Final Prospectus, neither the Company nor any of its
Significant Subsidiaries has violated, or is in violation of, any foreign,
federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state laws relating to discrimination in the hiring, promotion
or pay of employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which, in either case,
singly or in the aggregate, would result in any Material Adverse Change.]
(xviii) Each of the Company and its Significant Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business; each of the
Company and its Significant Subsidiaries has fulfilled and performed all of
its obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit, except, in any case, singly or in
the aggregate, where the failure to have such permits or fulfill and
perform such obligations would not have a Material Adverse Effect; such
permits contain no restrictions that are materially burdensome to the
Company or its Significant Subsidiaries.
(xix) The Company is not now, nor after sale of the Notes to be sold
hereunder and application of the net proceeds from such sale as shall be
described in the Final Prospectus under the caption "Use of Proceeds" will
it be, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(xx) Each Preliminary Prospectus filed pursuant to Rule 424 under
the Act complied when so filed in all material respects with the Act and
the Regulations.
(xxi) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company (other than registration statements that have
previously been filed) or to
7
require the Company to include such securities with the Notes registered
pursuant to the Registration Statement.
(xxii) All disclosures regarding Year 2000 compliance required to be
described under the Act or the Regulations (including disclosures required
by Staff Legal Bulletin ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇, July 29, 1998) have
been included in the Final Prospectus. Neither the Company nor any of its
subsidiaries will incur significant operating expenses or costs to ensure
that its information systems will be year 2000 compliant.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by such
party to each Underwriter as to the matters covered thereby.
2. Purchase and Sale of the Notes; Delivery and Payment.
----------------------------------------------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties of the Company herein set forth:
(i) the Company agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Company, at an aggregate purchase price of _____% of the principal amount
thereof (the "Purchase Price"), the aggregate principal amount at maturity
of the Firm Notes set forth opposite such Underwriter's name on Schedule I
hereto.
[(ii) the Company hereby agrees to sell to the Underwriters, and the
Underwriters shall have a one time right to purchase, severally and not
jointly, up to an aggregate of $___________ principal amount at maturity of
Option Notes at the Purchase Price. Option Notes may be purchased solely
for the purpose of covering overallotments made in connection with the Firm
Notes. If any Option Notes are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the principal amount at maturity of
Option Notes (subject to such adjustments to eliminate the issuance of
Option Notes in denominations other than integral multiples of $1,000
principal amount at maturity as the Underwriters may determine) that bears
the same proportion to the principal amount at maturity of Option Notes to
be purchased as the principal amount at maturity of Firm Notes set forth on
Schedule I hereto opposite the name of such Underwriter bears to the total
principal amount at maturity of Firm Notes.]
(b) Delivery and payment for the Notes shall be as follows:
(i) Delivery of and payment for the Firm Notes shall be made at the
offices of ___________________ at 10:00 a.m., New York City time, on
_______________, or such later date and time, if any, as the Underwriters
and the Company shall agree (such date and time of delivery and payment for
the Firm Notes being herein called the "Closing Date"). Delivery of the
Firm Notes shall be made to the Underwriters against payment by the
Underwriters of the Purchase
8
Price by wire transfer of immediately available funds to an account
specified by the Company.
[(ii) Delivery of and payment for any Option Notes to be sold by the
Company shall be made at the offices of __________________ at 10:00 a.m.,
New York City time, on such date (which may be the same as the Closing Date
but shall in no event be earlier than the Closing Date nor later than ten
business days after the giving of the notice hereinafter referred to) as
shall be designated in a written notice from the Underwriters to the
Company of their determination to purchase an amount, specified in said
notice, of Option Notes. Delivery of the Option Notes shall be made to the
Underwriters against payment by the Underwriters of the purchase price
thereof by wire transfer of immediately available funds payable to the
order of the Company. The time and date of such payment are hereinafter
referred to as the "Option Closing Date." The notice of the determination
to exercise the option to purchase Option Notes and of the Option Closing
Date may be given at any time within 30 days after the date of this
Agreement, but in any event shall be given at least two business days prior
to the Option Closing Date.]
Certificates for the Firm Notes and the Option Notes shall be in
definitive or global form and registered in such names and in such denominations
as you, on behalf of the Underwriters, shall request in writing not less than
two full business days prior to the Closing Date or the Option Closing Date, as
the case may be. The Firm Notes and any Option Notes shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the Notes to you duly
paid, against payment of the Purchase Price therefor.
3. Covenants of the Company. The Company covenants and agrees
------------------------
with each of the Underwriters as follows:
(a) The Company will promptly advise you (on behalf of the
Underwriters), and confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has become effective, (ii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or Final Prospectus or for any additional information, (iii) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the Notes for
sale in any jurisdiction or the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement and (iv) of receipt
by the Company or any representative of or attorney for the Company of any other
communications from the Commission relating to the Company, the Registration
Statement, any Preliminary Prospectus, the Final Prospectus or the transactions
contemplated by this Agreement. The Company will make [every reasonable effort]
to prevent the issuance of a stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and, if any such
stop order is issued, to obtain its lifting as soon as possible. The Company
will not file any amendment to the Registration Statement or any amendment of or
supplement to the Final Prospectus before or after the Effective Date to which
the Representative shall
9
reasonably object in writing after being timely furnished in advance a copy
thereof unless the Company shall conclude, upon the advice of counsel, that any
such amendment must be filed at a time prior to obtaining such consent.
(b) During the period of time when a prospectus relating to the Notes
is required to be delivered hereunder or under the Act or the Regulations, the
Company shall comply with all requirements imposed upon it by the Act and the
TIA, as now existing or hereafter amended, and by the Regulations, as from time
to time in force, so far as may be necessary to permit the continuance of sales
of and dealings in the Notes as contemplated by the provisions thereof and the
Final Prospectus. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which, in the judgment of the Company, you or your counsel, the Final
Prospectus as then amended or supplemented shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act, the TIA and the Regulations, the
Company shall notify the Representative promptly and prepare and file with the
Commission an appropriate post-effective amendment to the Registration Statement
or supplement to the Final Prospectus that will correct such untrue statement or
such omission and will use its best efforts to have any such post-effective
amendment to the Registration Statement declared effective as soon as possible.
(c) The Company shall promptly deliver to you and counsel for the
Underwriters a copy of the Registration Statement, including exhibits and all
documents incorporated by reference therein and all amendments thereto, and, so
long as delivery if a prospectus may be required by the Act, as many copies of
each Preliminary Prospectus, the Final Prospectus, all amendments of and
supplements to such documents, if any, as you reasonably may request.
(d) If and to the extent such qualification or registration may be
necessary, the Company shall cooperate with the Underwriters and their counsel
in connection with their efforts to qualify or register the Notes for sale under
the securities laws of such jurisdictions as you shall request, will execute
such applications and documents and furnish such information as may be
reasonably required for such purpose and will comply with such laws so as to
continue such qualification in effect for so long as may be required to complete
the distribution of the Notes; provided, however, that the Company shall not be
-------- -------
required to qualify as a foreign corporation in any jurisdiction or to file a
consent to service of process in any jurisdiction in any action other than one
arising out of the offering or sale of the Notes in such jurisdiction.
(e) The Company shall make generally available (within the meaning of
Section 11(a) of the Act and Rule 158 of the Regulations) to its security
holders and to you, in such numbers as you may reasonably request for
distribution to the Underwriters, as soon as practicable but in no event later
than 45 days after the end of the Company's fiscal quarter in which the first
anniversary of the Effective Date occurs, an earnings statement (which need not
be audited), covering a period of at least twelve consecutive
10
full calendar months commencing after the Effective Date, that satisfies the
provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(f) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and settlement
through The Depository Trust Company.
(g) The Company shall apply the net proceeds from the sale of the
Notes as shall be set forth under the caption "Use of Proceeds" in the Final
Prospectus.
4. Payment of Expenses. The Company will pay all expenses incident
-------------------
to the performance of its obligations under this Agreement, including (a) the
printing of the Registration Statement, the Base Prospectus, any Preliminary
Prospectus and the Final Prospectus and of each amendment or supplement thereto
and the delivery to the Underwriters of printed copies thereof, (b) the copying
of this Agreement and the Indenture, (c) the preparation, issuance and delivery
of the Notes to the Underwriters, including capital duties, stamp duties and
transfer taxes, if any, payable upon issuance of any of the Notes, the sale of
the Notes to the Underwriters and the fees and expenses of the Trustee, (d) the
fees and disbursements of its counsel and accountants, (e) the qualification of
the Notes under state securities laws in accordance with the provisions of
Section 3(d), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of any blue sky survey and any legal investment survey, (f) the
printing and delivery to the Underwriters of copies of any blue sky survey and
any legal investment survey, (g) the fee of any filing for review of the
offering with the NASD and (h) any out pocket expenses incurred by the Company
or, with the Company's prior consent, on behalf of the Company, on any "road
show" or similar presentation to prospective purchasers of Notes from the
Underwriters. It is understood, however, that except as provided in this
Section, and Sections 6 and 7 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Notes by them, and any
advertising expenses connected with any offers they may make.
5. Conditions of the Underwriters' Obligations. The obligations of
-------------------------------------------
the several Underwriters to purchase and pay for the Notes, as provided herein,
shall be subject to (i) the accuracy, in all material respects, of the
representations and warranties of the Company herein contained, as of the date
hereof, as of the Closing Date and, with respect to Option Notes, the Option
Closing Date, (ii) the absence from any certificates, opinions, written
statements or letters furnished pursuant to this Section 5 to you or to counsel
of the Underwriters of any qualification or limitation not previously approved
in writing by you, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional obligations:
(a) Any post-effective amendments to the Registration Statement
required to be filed by the Company prior to the Closing Date shall have become
effective and no stop order suspending the effectiveness of the Registration
Statement or any such post-effective amendment shall have been issued and no
proceedings therefor
11
shall have been initiated or, to the knowledge of the Company, threatened by the
Commission.
(b) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) (i) no proceeding under the Act or the Exchange Act shall
have been initiated or threatened by the Commission, or, with respect to the
filing of any Form 8-A under the Exchange Act, by any national securities
exchange; and all requests for additional information on the part of the
Commission shall have been complied with or such requests shall have been
otherwise satisfied, and (ii) since the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, except as
otherwise stated therein or contemplated thereby, there shall not have been any
material adverse change in, or any adverse development which materially affects,
the financial condition, results of operations, business or properties of the
Company and its subsidiaries considered as one enterprise, the effect of which
is in your reasonable judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or delivery of
the Notes on the terms and in the manner contemplated in the Final Prospectus.
(c) The Indenture shall have been duly executed and delivered by the
Company and the Trustee.
(d) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Final Prospectus shall not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Underwriters shall have received the favorable
opinion, dated as of the Closing Time, of:
(A) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, in a
form reasonably satisfactory to the Underwriters, to the effect that:
(1) The Notes have been duly authorized by the Company for
issuance and when executed (and assuming the due authorization,
execution and delivery of the Indenture by the Trustee and the
execution, delivery and authentication of the Notes by the Trustee in
accordance with the Indenture) and delivered by the Company to and
paid for by the Underwriters in accordance with the terms of this
Agreement, will be duly executed, authenticated, issued and delivered
and will constitute the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless
of whether a proceeding is sought in equity or at law).
12
(2) The Indenture has been duly authorized by the Company and,
when duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether a
proceeding is sought in equity or at law).
(3) The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement
has been duly executed and delivered by the Company.
(4) The statements made in the Final Prospectus under the
caption "Description of the Debt Securities," insofar as they describe
the provisions of the Notes and the Indenture, constitute fair
summaries thereof accurate in all material respects.
(5) The Company is not now, nor immediately after the sale of
the Notes to be sold hereunder and application of the net proceeds
from such sale (as described in the Final Prospectus under the caption
"Use of Proceeds") will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(6) Neither the consummation of the transactions contemplated
hereby nor the sale, issuance, execution or delivery of the Notes, nor
the application of the proceeds therefrom (as shall be described in
the Final Prospectus under the caption "Use of Proceeds"), will
violate Regulation T (12 C.F.R. Part 220), U (12 C.F.R. Part 221) or X
(12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System; the Notes, and the use of the proceeds therefrom (as shall be
described in the Final Prospectus under the caption "Use of
Proceeds"), do not constitute "purpose credit" as such term is
understood under such Regulations; and
(B) ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, in
a form reasonably satisfactory to the Underwriters, to the effect
that:
(1) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of State of Delaware with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and as shall be described in the Final Prospectus. To the best of such
counsel's
13
knowledge, the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of ownership
or leasing of property or the conduct of business, except where the
failure to so qualify would not have a Material Adverse Effect.
(2) 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 nonassessable and are owned of record by General Motors
Corporation. All of the issued and outstanding shares of capital stock
of each of the Significant Subsidiaries have been duly authorized and
validly issued and are fully paid and non assessable and are owned by
the Company, directly or indirectly, free and clear of all Liens,
other than as set forth in the Registration Statement and as shall be
described in the Final Prospectus.
(3) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated hereby
and thereby will not conflict with, constitute a default under or
violate (or with respect to clause (y), impose or create any lien upon
any material property or assets of the Company or any of its
Significant Subsidiaries under) (x) any of the terms, conditions or
provisions of the respective certificates of incorporation or by laws
of the Company or its Significant Subsidiaries, (y) to the best of
such counsel's knowledge, any of the terms, conditions or provisions
of any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or its Significant
Subsidiaries is a party or by which the Company or its Significant
Subsidiaries is bound, or to which any of the property or assets of
the Company or its Significant Subsidiaries is subject, except with
respect to such conflicts, defaults or violations which would not have
a Material Adverse Effect, or (z) any decree of any court or
governmental authority binding on the Company or its Significant
Subsidiaries, of which such counsel is aware, except those which would
not have a Material Adverse Effect.
(4) To the best of such counsel's knowledge, no default exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company or its Significant Subsidiaries is a party or is
bound where such default could have a Material Adverse Effect.
(5) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which could
reasonably be expected to have a Material Adverse Effect and which are
not disclosed in the Registration Statement or as shall be described
in the Final Prospectus.
14
In giving their opinions required by subsections (e)(A) and (B) of
this Section, Weil, Gotshal & ▇▇▇▇▇▇ LLP and Ms. Tiffany shall additionally
state that each such counsel (together with, in the case of Mr. Tiffany,
attorneys on her staff acting under her supervision) have participated in
conferences with directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Final Prospectus and
related matters were discussed, and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final Prospectus
(except in the case of Weil, Gotshal & ▇▇▇▇▇▇ LLP to the extent specified in
subsections (e)(A)(4)), no facts have come to such counsel's attention which
lead it or him to believe that the Final Prospectus, on the date thereof or at
the Closing Date (or the Option Closing Date, as the case may be), contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel expresses no view with respect
to the financial statements and related notes, the financial statement schedules
and the other financial, statistical and accounting data included in the Final
Prospectus).
References to the Final Prospectus in this subsection (c) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
The opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP described in subsection
(e)(A) and the opinion of ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇, Esq. described in subsection
(e)(B) shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(f) The favorable opinion, dated as of the Closing Date (and, with
respect to the Option Notes, the Option Closing Date), of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, in form and substance satisfactory to the
Underwriters.
(g) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Final Prospectus,
any Material Adverse Change, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of the
President of the Company and of an Executive Vice President of the Company,
dated as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), to the effect that (i) there has been no Material Adverse Change,
(ii) the representations and warranties in Section l(a) are true and correct in
all material respects with the same force and effect as though expressly made at
and as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), and (iii) the Company has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date (and, with respect to the Option
Notes, the Option Closing Date).
15
(h) On the date hereof and on the Closing Date (and, with respect to
the Option Notes, the Option Closing Date), the Underwriters shall have received
from Deloitte & Touche LLP "cold comfort" letters dated such dates, in customary
form and substance and otherwise reasonably satisfactory to the Underwriters.
(i) At the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes 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 Company in connection with
the issuance and sale of the Notes and as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(j) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded any of the debt securities of the Company or its
Significant Subsidiaries by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the debt securities of the Company or its
Significant Subsidiaries.
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 Underwriters by notice to the Company, and such termination shall be
without liability of any party to any other party except as provided in Sections
4, 6 and 7.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers and employees, and each person, if any, who
controls an Underwriter and its directors, officers and employees within the
meaning of Section 15 of the 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, any Preliminary Prospectus or Final Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any
16
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company (which shall not be unreasonably withheld); and
(iii) against any and all expenses whatsoever, as incurred (including,
subject to subsection (c) of this Section 6, the reasonable fees and
disbursements of counsel chosen by the Underwriters), 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, (A) the Company shall not be obligated to indemnify or
-------- -------
hold harmless an Underwriter and its controlling persons and their respective
directors, officers and employees in respect of any loss, claim, damage,
liability or action to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Preliminary Prospectus if
such Underwriter failed to deliver the Final Prospectus that was made available
by the Company for delivery to the person or persons asserting the claim which
is the basis of indemnification and such Final Prospectus cured such defect, and
(B) with respect to each Underwriter, this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information concerning such Underwriter
furnished to the Company by or on behalf of such Underwriter in writing
expressly for use in the Final Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto). This indemnity shall be in addition to any
indemnity that such indemnified persons may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, officers and employees, and each person, if any, who
controls the Company and their directors, officers and employees within the
meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to an untrue statement or
omission, or alleged untrue statement or omission, made in the Registration
Statement, Final Prospectus or the Preliminary Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of such
Underwriter expressly for use in the Registration Statement, Final Prospectus or
such Preliminary 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, unless and to the extent the indemnifying party did not otherwise
learn of such action and such failure results in the forfeiture by
17
the indemnifying party of substantial rights or defenses. An indemnified party
may participate at its own expense in the defense of any such action. 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. An indemnifying party shall be
liable for any settlement of any claim against an indemnified party made with
the indemnifying party's written consent, which consent shall not be
unreasonably withheld.
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 Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the purchase discount applicable to the Notes purchased by the
Underwriters bears to the Offering Price appearing on the cover page of the
Final Prospectus and the Company is responsible for the balance; provided,
--------
however, that no person guilty of fraudulent misrepresentation (within the
-------
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Notwithstanding
the provisions of this Section, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to purchasers exceeds the amount of any
damages which such Underwriter has otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section, each director, officer and employee of an Underwriter or the Company,
and each person, if any, who controls an Underwriter or the Company within the
meaning of Section 15 of the Act, shall have the same rights to contribution as
such Underwriter or the Company, as the case may be.
8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties, and agreements contained in this Agreement or
in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of an Underwriter or any controlling person, or by or on
behalf of the Company, and shall survive delivery of and payment for the Notes
to the Underwriters.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter shall default, in whole or in part, in its
obligation to purchase Notes hereunder, and if the Notes with respect to which
such default relates do not (after giving effect to arrangements, if any, made
pursuant to subsection (b) below) exceed in the aggregate 10% of the total
number of Notes that all Underwriters have agreed to purchase hereunder, then
the Notes to which the default
18
relates shall be purchased by the non-defaulting Underwriters on a pro rata
basis based on the amount of Notes to be purchased as set forth on Schedule I.
(b) If such default relates to more than 10% of the Notes, the
Representative may in its discretion arrange for another party or parties
(including the non-defaulting Underwriters, if they should so agree) to purchase
those of the Notes to which such default relates on the terms contained herein.
If within thirty-six (36) hours after such a default the Representative does not
arrange for the purchase of those of the Notes to which such default relates as
provided in this Section 9, this Agreement shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 4, 6 and 7 hereof) or the non-defaulting Underwriters
(except as provided in Sections 6 and 7 hereof), but nothing in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) If the Notes to which the default relates are to be purchased by
any non-defaulting Underwriters, or are to be purchased by another party or
parties as aforesaid, the Representative or the Company shall have the right to
postpone the Closing Date for a period not exceeding five (5) business days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Final Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Final Prospectus that, in the
opinion of Underwriters' Counsel, may thereby be made necessary or advisable.
The term "Underwriter" as used in this Agreement shall include any party
substituted under this Section 9 with like effect as if it had originally been a
party to this Agreement with respect to such Notes.
10. Termination.
-----------
(a) The Underwriters may terminate this Agreement, by notice to the
Company, (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Final Prospectus, any
Material Adverse Change, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the U.S.
or international financial markets or any outbreak of hostilities or other
calamity or crisis, the effect of which on the financial securities markets of
the United States is such as to make it, in the judgment of the Underwriters,
impracticable to market the Notes or to enforce contracts for the sale of the
Notes, or (iii) if trading in any of the securities of the Company or any of its
subsidiaries has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority; provided that
--------
any such suspension, limitation or minimum prices exist at the time of such
termination or (iv) if a banking moratorium has been declared by either federal
or New York authorities.
19
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Sections 4, 6 and 7.
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 them c/o ________________________; notices to the Company shall be
directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel.
12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company and their respective successors,
heirs and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and their respective
successors, heirs and legal representatives, 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 rights, remedy or claim under or in
respect of this Agreement or any provision herein. This Agreement and all
conditions and provisions hereof are intended for the sole and exclusive benefit
of the Underwriters, the Company and their respective successors, heirs and
legal representatives, 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 Notes from either of the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
13. Governing Law and Time. This Agreement shall be governed by and
----------------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ ELECTRONICS CORPORATION
By: _______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
[MANAGING UNDERWRITER(S)]
By:____________________________
Name:
Title:
[OTHER UNDERWRITER(S)]
By:____________________________
Name:
Title:
21
SCHEDULE I
UNDERWRITERS
------------
Amount of
Notes
Name of Underwriter to be Purchased
------------------- ---------------
_________________________.......................................................
_________________________.......................................................
TOTAL:
=====
22