Exhibit 1(a)
EXECUTION COPY
▇▇▇▇▇ CORPORATION
("COMPANY")
$300,000,000 5.75% Notes due 2012
TERMS AGREEMENT
---------------
July 17, 2002
▇▇▇▇▇ CORPORATION
▇▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We offer to purchase, severally and not jointly, on and
subject to the terms and conditions of the Underwriting Agreement attached
hereto as Appendix A ("Underwriting Agreement"), the respective principal
amounts of the Notes ("Notes") of ▇▇▇▇▇ Corporation, an Ohio corporation (the
"Company"), set forth in Schedule I hereto opposite our respective names on the
following terms:
TITLE: 5.75% Notes due 2012
PRINCIPAL AMOUNT: $300,000,000
INTEREST: 5.75% per annum, from July 23, 2002, payable semiannually on
January 15 and July 15, commencing January 15, 2003, to holders of
record on the preceding January 1 or July 1, as the case may be.
MATURITY: July 15, 2012
OPTIONAL REDEMPTION: None
SINKING FUND: None
PURCHASE PRICE: 98.977%, plus accrued interest from July
23, 2002, if settlement occurs after that date.
PUBLIC OFFERING PRICE: 99.627%, plus accrued interest from
July 23, 2002, if settlement occurs after that date,
subject to change by the undersigned.
LOCK-UP: During the period beginning from the date of this
Terms Agreement and continuing until and including the Closing Date (as defined
below), the Company will not, directly or indirectly, offer, sell, offer to
sell, contract to sell or otherwise dispose of any of its securities that are
substantially similar to the Notes, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
CLOSING: 10:00 A.M. on July 23, 2002 (the "Closing Date"),
at the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, by
wire transfer, payable to the order of the Company in Federal (same day) funds.
Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
McDonald Investments, Inc.
Barclays Capital Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SCHEDULE I
UNDERWRITERS NOTES TO BE PURCHASED
------------ ---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.......................... $240,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc........................ 30,000,000
McDonald Investments, Inc......................... 20,000,000
Barclays Capital Inc. ............................ 10,000,000
-------------
Total.................................... $300,000,000
============
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
McDonald Investments, Inc.
Barclays Capital Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
We accept the offer contained in your letter to us, dated July
17, 2002 (the "Terms Agreement"), relating to the Notes (as defined in the Terms
Agreement). We also confirm that the representations and warranties of ▇▇▇▇▇
Corporation in the Underwriting Agreement attached to the Terms Agreement
("Underwriting Agreement") are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of ▇▇▇▇▇ Corporation, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the U.S. Prospectus
(as defined in the Underwriting Agreement), there has been no material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders
equity or results of operations of ▇▇▇▇▇ Corporation and its subsidiaries, taken
as a whole, except as set forth in or contemplated by the U.S. Prospectus.
Very truly yours,
▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Controller
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
Dated: July 17, 2002
Revised: July 17, 2002
▇▇▇▇▇ CORPORATION
DEBT SECURITIES - PREFERRED SHARES
COMMON SHARES - WARRANT SECURITIES
UNDERWRITING AGREEMENT
----------------------
1. Introductory. ▇▇▇▇▇ Corporation, an Ohio corporation ("Company"),
proposes to issue and sell from time to time:
(a) certain of its debt securities registered under one of the
registration statements referred to in Section 2(a) ("Registered Debt
Securities"). The Registered Debt Securities will be issued under an
indenture dated as of April 1, 1994 ("Senior Indenture") for the
issuance of the Company's senior debt securities ("Senior Debt
Securities"), between the Company and JPMorgan Chase Bank, as Trustee
("Senior Trustee"), or an indenture ("Subordinated Indenture") for the
issuance of the Company's subordinated debt securities ("Subordinated
Debt Securities"), between the Company and JPMorgan Chase Bank, as
Trustee ("Subordinated Trustee"), each in one or more series, each of
which such series may vary as to interest rates, maturities, redemption
provisions, selling prices, terms of conversion, in the case of
Subordinated Debt Securities, if any ("Convertible Subordinated Debt
Securities"), and other terms, with all such terms for any particular
series of the Registered Debt Securities being determined at the time
of sale. Particular series of the Registered Debt Securities will be
sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with terms of offering determined at the time of sale;
(b) certain of its shares of its preferred stock registered
under one of the registration statements referred to in Section 2(a)
("Registered Preferred Shares"). The Registered Preferred Shares may be
issued in one or more series, which series may vary as to dividend
rates, redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Preferred Shares
being determined at the time of sale. Particular series of the
Registered Preferred Shares will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale;
(c) certain of its common shares ("Common Shares") registered
under one of the registration statements referred to in Section 2(a)
("Registered Common Shares"). Particular offerings of the Registered
Common Shares will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined
at the time of sale; and
(d) certain of its warrant securities registered under one of
the registration statements referred to in Section 2(a) ("Registered
Warrant Securities"). The Registered Warrant Securities will be issued
under a warrant
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agreement, ("Warrant Agreement") between the Company and the
organization to be named therein upon the execution thereof, as Warrant
Agent, in one or more series, which series may vary as to expiration
date, conversion terms, premium price, if any, and other terms, with
all such terms for any particular series of the Registered Warrant
Securities being determined at the time of sale. Particular series of
the Registered Warrant Securities will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance with terms
of offering determined at the time of sale.
The Registered Debt Securities, Registered Preferred Shares,
Registered Common Shares and Registered Warrant Securities are collectively
referred to herein as the "Registered Securities". The Registered Securities
(including any combination of such securities) involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriter" or
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters. It is understood that the Company may from time to time agree to
sell Securities to a certain firm or firms ("Manager" or "Managers") outside the
United States and Canada, such Manager or Managers to be specified in, and said
Securities to be sold pursuant to, a Terms Agreement (such Terms Agreement being
referred to therein by such Managers as a Subscription Agreement). As used
herein, the terms Underwriter and Underwriters are deemed to include, unless the
context otherwise specifies or requires, the Manager or Managers. The
Underwriters and Managers (or Underwriter and Manager) may provide for the
coordination of their activities by entering into an Agreement between U.S.
Underwriters and Managers which may permit them, among other things, to sell
Securities to each other for purposes of resale. As used herein the term "United
States" shall mean the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction and "Canada" means Canada, its provinces, territories and
possessions and other areas subject to its jurisdiction.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter and each Manager
that:
(a) A registration statement (No. 333-74355), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect (i) if Registered Debt Securities, Registered Preferred Shares
or Registered Warrant Securities are offered, the terms of the
Securities and the terms of offering thereof and (ii) if Registered
Common Share Securities are offered, the terms of offering of the
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)")
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under the Securities Act of 1933 (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"U.S. Prospectus". The prospectus relating to the Securities to be sold
by the Company to the Manager or Managers, as supplemented by a
prospectus supplement as of the time of the applicable Terms Agreement,
which will be identical to the U.S. Prospectus except as provided in
such Terms Agreement, is hereinafter referred to as the "International
Prospectus" (collectively the U.S. Prospectus and the International
Prospectus are hereinafter referred to as the "Prospectuses").
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules
and regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. Each preliminary prospectus, as of
the date thereof, and the Registration Statement and the U.S.
Prospectus and International Prospectus, as the case may be, on the
date of each Terms Agreement referred to in Section 3, will conform in
all material respects to the requirements of the Act and the Rules and
Regulations and, if Registered Debt Securities are offered by the U.S.
Prospectus or the International Prospectus, the Trust Indenture Act,
and none of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from any of such documents based upon written information furnished to
the Company by (i) the Trustee in its Form T-1 (Statement of
Eligibility of Trustee) filed with the Registration Statement, (ii) any
Underwriter through the Representatives, if any, specifically for use
in the U.S. Prospectus or (iii) any Manager specifically for use in the
International Prospectus.
(c) To the best knowledge of the Company, there is no existing
or imminent labor dispute or organizational effort by the employees of
the Company or any of its Subsidiaries (as defined in subsection (e))
or any existing or imminent labor disturbance by the employees of any
of its or any Subsidiary's principal suppliers, contractors or
customers that is reasonably expected to have a material adverse effect
upon the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole.
(d) Except as disclosed in the Registration Statement and
except as is not reasonably expected to have a material adverse effect
upon the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole, each of the Company and its Subsidiaries is in compliance with
all applicable Environmental Laws. As used herein, "Environmental Laws"
means any United States or Canadian, federal, state, local or municipal
statute, law, rule, regulation, ordinance, judicial or administrative
order, consent decree or judgment, relating to the protection of the
environment,
4
the protection of public health and safety from environmental concerns
or the protection of worker health and safety.
(e) Neither the Company nor any of its subsidiaries (as
defined in Rule 1.02(x) of Regulation S-X) (each a "Subsidiary" and,
collectively, the "Subsidiaries") is in violation of its articles or
certificate of incorporation or regulations or bylaws or in default
under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its
Subsidiaries taken as a whole.
(f) Except as described in (or incorporated by reference in)
the Registration Statement and each U.S. Prospectus or International
Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects, the business, properties,
financial condition, results of operations or prospects of the Company
and its Subsidiaries taken as a whole from the dates as of which
information is given in the Registration Statement and each U.S.
Prospectus and International Prospectus.
(g) Ernst & Young LLP, whose report appears in the Company's
most recent Annual Report on Form 10-K which is incorporated by
reference in the Registration Statement and each U.S. Prospectus and
International Prospectus and who have examined certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the Rules and Regulations.
(h) The Company and ▇▇▇▇▇▇-▇▇▇▇▇▇, Inc., Eaton Administration
Corporation, Eaton MDH Co., Inc., Eaton Aeroquip, Inc., Eaton Holding
Limited, Eaton AC&R, Inc., Eaton Aerospace LLC, and ▇▇▇▇▇▇-▇▇▇▇▇▇ de
Puerto Rico Inc. (each a "Significant Subsidiary", which together
constitute all of the significant subsidiaries (as defined in Rule
1.02(w) of Regulation S-X) of the Company) have each been duly
incorporated, are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its Subsidiaries taken as a whole),
and have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged. All
of the issued and outstanding stock of each Significant Subsidiary has
been duly authorized and validly issued and is fully paid and
nonassessable. The Company owns all of the issued and outstanding
shares of each Significant Subsidiary, directly or through one or more
Subsidiaries, except to the extent of shares owned of record by
directors for the purpose of qualification as such, free and clear of
any pledges, liens, encumbrances, claims or equities.
(i) Except as described in (or incorporated by reference in)
each U.S. Prospectus and International Prospectus, there is no material
litigation or
5
governmental proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries which is
reasonably expected by the Company to result in any material adverse
change in the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole or which is required to be disclosed in (or incorporated by
reference in) the Registration Statement.
(j) The financial statements filed as part of, or incorporated
by reference in, the Registration Statement or included in, or
incorporated by reference in, any preliminary prospectus, U.S.
Prospectus or International Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will present, at all times during the period specified in Section
4(b) hereof, fairly, the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will be, at all
times during the period specified in Section 4(b) hereof, prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
disclosed in such financial statements.
The unaudited pro forma financial information, if any, filed as a part
of, or incorporated by reference in, the Registration Statement or
included in, or incorporated by reference in, any preliminary
prospectus, U.S. Prospectus or International Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is made) will
present, at all times during the period specified in Section 4(b)
hereof, fairly, on the basis set forth in any such document, the
information set forth therein, has been prepared in accordance with the
Rules and Regulations and the guidelines of the Commission with respect
to pro forma financial information, has been properly compiled on the
pro forma bases set forth therein, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(k) The documents incorporated by reference into the
Registration Statement, and each preliminary prospectus, U.S.
Prospectus and International Prospectus conformed on the respective
dates such documents were filed with the Commission (or, if the
International Prospectus and each related preliminary prospectus is not
filed with the Commission, first used by the Managers) and (in the case
of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will conform at all times in all material respects during the
period specified in Section 4(b) hereof, with the
6
applicable requirements of the Act and the Rules and Regulations and
the Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act") and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the period specified in Section 4(b)
hereof timely filed as required thereby.
(l) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations, or which were required to be filed
as exhibits to any document incorporated by reference in any U.S.
Prospectus or International Prospectus by the Securities Exchange Act
or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the Commission under
the Securities Exchange Act as required.
(m) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the United States Investment
Company act of 1940, as amended (the "Investment Company Act").
(n) with respect to all Securities which are Senior Debt
Securities --
(i) The Senior Indenture, including any amendments
and supplements thereto, pursuant to which the Senior Debt
Securities will be issued, will conform with the requirements
of the Trust Indenture Act on the Closing Date (as defined in
Section 3 hereof).
(ii) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
(as defined in Section 3 hereof) and compliance by the Company
with the provisions contained herein, in the Senior Debt
Securities and in the Senior Indenture will not conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the Company
or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or
certificate of incorporation or regulations, as amended, of
the Company or any of its Subsidiaries or any law, order, rule
or regulation of any court or governmental agency having
jurisdiction over the Company, any of its Subsidiaries or
their respective properties; and, except as required by the
Act, the Trust Indenture Act, the Securities Exchange Act and
applicable state securities laws or foreign laws, no consent,
authorization or order of, or filing or registration with, any
court or governmental agency is required for the issuance and
sale of the Senior
7
Debt Securities or the execution, delivery and
performance of this Agreement, the Delayed Delivery
Contracts, if any, and the Senior Indenture.
(iii) On the Closing Date, (A) the Senior
Indenture will have been duly authorized, executed
and delivered by the Company and will constitute the
legally binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law), (B) the Senior Debt
Securities will have been validly authorized and,
when duly executed, authenticated and delivered in
accordance with the Senior Indenture, upon payment
thereof as provided in this Agreement, will be
validly issued and outstanding, and will constitute
legally binding obligations of the Company entitled
to the benefits of the Senior Indenture, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (C) the Senior
Debt Securities and the Senior Indenture will conform
in all material respects to the descriptions thereof
contained in the U.S. Prospectus and International
Prospectus.
(o) with respect to all Securities which are
Subordinated Debt Securities --
(i) The Subordinated Indenture, including
any amendments and supplements thereto, pursuant to
which the Subordinated Debt Securities will be
issued, will conform with the requirements of the
Trust Indenture Act on the Closing Date.
(ii) The execution, delivery and performance
by the Company of this Agreement and any Delayed
Delivery Contracts and compliance by the Company with
the provisions contained herein, in the Subordinated
Debt Securities and in the Subordinated Indenture
will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon
any of the respective assets of the Company or any of
its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement,
indenture or instrument, or result in a violation of
the articles or certificate of incorporation or
amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of
any court or governmental agency having jurisdiction
over the Company,
8
any of its Subsidiaries or their respective
properties; and, except as required by the Act, the
Trust Indenture Act, the Securities Exchange Act and
applicable state securities laws or foreign laws, no
consent, authorization or order of, or filing or
registration with, any court or governmental agency
is required for the issuance and sale of the
Subordinated Debt Securities or the execution,
delivery and performance of this Agreement, the
Delayed Delivery Contracts, if any, and the
Subordinated Indenture.
(iii) On the Closing Date, (A) the
Subordinated Indenture will have been validly
authorized, executed and delivered by the Company and
will constitute the legally binding obligation of the
Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law), (B) the Subordinated Debt
Securities will have been validly authorized and,
when duly executed, authenticated and delivered in
accordance with the Subordinated Indenture, upon
payment therefor as provided in this Agreement, will
be validly issued and outstanding, and will
constitute legally binding obligations of the Company
entitled to the benefits of the Subordinated
Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law) and (C) the Subordinated Debt
Securities and the Subordinated Indenture will
conform in all material respects to the descriptions
thereof contained in the U.S. Prospectus and
International Prospectus.
(p) with respect to all Securities which are
Convertible Subordinated Debt Securities --
(i) On the Closing Date, the Company will
have reserved and will, at all times, keep available
for issuance upon the conversion of the Convertible
Subordinated Debt Securities such number of its
authorized but unissued Common Shares deliverable
upon conversion of the Convertible Subordinated Debt
Securities as will be sufficient to permit the
conversion in full of all outstanding Convertible
Subordinated Debt Securities.
(ii) On the Closing Date, the Common Shares
will conform in all material respects to the
description thereof contained in the U.S. Prospectus
and International Prospectus.
9
(iii) All corporate action required to be
taken for the authorization, issuance and delivery of the
Common Shares issuable upon conversion of the Convertible
Subordinated Debt Securities has been validly taken; when
issued and delivered in accordance with the terms of the
Convertible Subordinated Indenture, such Common Shares will be
validly issued, fully paid and nonassessable; and the issuance
of the Convertible Subordinated Debt Securities is not, and
the issuance of any such Common Shares will not be, subject to
the preemptive rights of any stockholder of the Company.
(q) with respect to all Securities which are Registered
Warrant Securities --
(i) The Senior Indenture, including any amendments
and supplements thereto, pursuant to which the Senior Debt
Securities will be issued upon exercise of the Registered
Warrant Securities, will conform with the requirements of the
Trust Indenture Act on the Closing Date .
(ii) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
and compliance by the Company with the provisions contained
herein, in the Registered Warrant Securities, in the Senior
Debt Securities issuable upon exercise of the Registered
Warrant Securities, in the Warrant Agreement and in the Senior
Indenture will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument, or result in a
violation of the articles or certificate of incorporation or
amended regulations of the Company or any of its Subsidiaries
or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any
of its Subsidiaries or their respective properties; and,
except as required by the Act, the Trust Indenture Act, the
Securities Exchange Act and applicable state securities laws,
no consent, authorization or order of, or filing or
registration with, any court or governmental agency is
required for the issuance and sale of the Registered Warrant
Securities and the Senior Debt Securities issuable upon
exercise of the Registered Warrant Securities or the
execution, delivery and performance of this Agreement, the
Delayed Delivery Contracts, if any, the Warrant Agreement and
the Senior Indenture.
(iii) On the Closing Date, (A) the Warrant Agreement
and the Senior Indenture will have been validly authorized,
executed and delivered by the Company and will constitute the
legally binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting
10
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law), (B) the Registered Warrant
Securities will have been validly authorized and, when duly
executed, authenticated and delivered in accordance with the
Subordinated Indenture, upon payment therefor as provided in
this Agreement, will be validly issued and outstanding, and
will constitute legally binding obligations of the Company,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law), (C) the Registered Warrant Securities, the Warrant
Agreement, the Senior Debt Securities issuable upon the
exercise of the Registered Warrant Securities and the Senior
Indenture will conform in all material respects to the
descriptions thereof contained in the U.S. Prospectus and
International Prospectus and (D) the Senior Debt Securities
issuable upon the exercise of the Registered Warrant
Securities will have been validly authorized and, when issued
and delivered in accordance with the terms of the Registered
Warrant Securities and the Senior Indenture, will be validly
issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the
Senior Indenture, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(r) with respect to all Securities which are Registered
Preferred Shares --
(i) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
and compliance by the Company with the provisions contained
herein, in the Registered Preferred Shares and in the
Certificate of Designations will not conflict with, result in
the creation or imposition of any lien, charge or encumbrance
upon any of the respective assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument, or
result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of
its Subsidiaries or any law, order, rule or regulation of any
court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective
properties, and, except as required by the Act, the Securities
Exchange Act and applicable state securities laws or foreign
laws, no consent, authorization or order of, or
11
filing or registration with, any court or
governmental agency is required for the issuance and
sale of the Registered Preferred Shares, or the
execution, delivery and performance of this Agreement
or the Delayed Delivery Contracts, if any.
(ii) The authorization, creation, issuance
and sale of the Registered Preferred Shares and
compliance by the Company with all of the provisions
of the Certificate of Designations are within the
corporate powers of the Company.
(iii) On the Closing Date, the Registered
Preferred Shares will have been validly authorized
and, when duly executed, authenticated and delivered,
upon payment therefor as provided in this Agreement,
will be validly issued, fully paid and nonassessable.
(iv) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date
any Common Shares issuable upon conversion of the
Registered Preferred Shares will have been duly
authorized by the Company and, when issued and
delivered in accordance with the Registered Preferred
Shares and the Certificate of Designations, will be
validly issued, fully paid and nonassessable.
(v) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date
the Company will have reserved and will, at all
times, keep available for issuance upon the
conversion of the Registered Preferred Shares such
number of its authorized but unissued Common Shares
deliverable upon conversion of the Registered
Preferred Shares as will be sufficient to permit the
conversion in full of all outstanding Registered
Preferred Shares.
(vi) All corporate action required to be
taken for the authorization, issuance and delivery of
any shares of Common Shares issuable upon conversion
of the Registered Preferred Shares has been validly
taken, and the issuance of the Registered Preferred
Shares is not, and the issuance of any such shares of
Common Shares will not be, subject to any preemptive
rights of any stockholder of the Company.
(s) with respect to all Securities which are Registered Common
Shares.
(i) The execution, delivery and performance by the
Company of this Agreement and compliance by the Company with
the provisions contained herein, will not conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the Company
or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or
certificate of
12
incorporation or amended regulations of the Company
or any of its Subsidiaries or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its
Subsidiaries or their respective properties, and,
except as required by the Act, the Securities
Exchange Act and applicable state securities laws or
foreign laws, no consent, authorization or order of,
or filing or registration with, any court or
governmental agency is required for the issuance and
sale of the Registered Common Shares, or the
execution, delivery and performance of this
Agreement.
(ii) All corporate action required to be
taken for the authorization, issuance and delivery of
the Registered Common Shares has been validly taken,
and the issuance of the Registered Common Shares is
not, and will not be, subject to any preemptive
rights of any stockholder of the Company.
Any certificate signed by any officer of the Company and
delivered to the Representatives, the Managers or to counsel for the
Underwriters pursuant to this Agreement shall be deemed to be a representation
and warranty by the Company to each Underwriter (or each Manager) as to the
matters covered thereby.
3. Purchase and Offering of Securities. The obligation of the
Underwriters, if any, and the obligation of the Managers, if any, to purchase
the Securities will be evidenced by an exchange of facsimile or other written
communications ("Terms Agreement") at the time the Company determines to sell
the Securities. All references herein to this Agreement include the applicable
Terms Agreement. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters or Managers, the names of
any Representatives, the principal amount or number of shares to be purchased by
each Underwriter and Manager, and the purchase price to be paid by the
Underwriters and Managers and, if the Securities include Registered Debt
Securities, Registered Preferred Shares or Registered Warrant Securities, the
terms of such Securities not already specified in the Indenture, Certificate of
Designations or Warrant Agreement, respectively, including, but not limited to,
interest or dividend rate, maturity, redemption provisions and sinking fund
requirements, whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below), expiration
date and conversion terms (if any such terms are to be applicable). If the
Company grants the Underwriters (or Managers) an option to purchase additional
Securities to cover over-allotments, the terms of such option (or options) will
be specified in the Terms Agreement. The Terms Agreement will also specify the
time and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Representatives (and
the Managers) and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement (or prospectus supplements) relating to
the offering of the Securities.
The obligations of the Underwriters and Managers to purchase the
Securities will be several and not joint. It is understood that the Underwriters
and Managers propose to offer the
13
Securities for sale as set forth in the U.S. Prospectus and International
Prospectus, respectively. The certificates for the Securities delivered to the
Underwriters and Managers on the Closing Date will be in definitive form and, if
applicable, fully registered form and in such denominations, and will be
registered in such names, as the Underwriters and Managers may reasonably
request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters (and the
Managers) to solicit offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters (and to the Managers, if applicable), the fee set
forth in such Terms Agreement in respect of the principal amount or number of
shares of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters (and Managers) will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters (and Managers) and the aggregate principal amount or number
of shares of Securities to be purchased will be reduced pro rata in proportion
of the aggregate principal amount or number of shares of Securities set forth
opposite each Underwriter's (and Manager's) name in such Terms Agreement, except
to the extent that the Representatives (or Managers) determine and agree that
such reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives (and Managers) not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to ▇▇▇▇▇▇▇▇ & Sterling, counsel for
the Underwriters, as many signed copies of the registration statement as they
may reasonably request relating to the Registered Securities, including all
exhibits, in the form in which it became effective and of all amendments thereto
and that, in connection with each offering of Securities:
(a) The Company will prepare the U.S. Prospectus and the
International Prospectus each in a form to which the Underwriters shall
not reasonably object. The Company will file the U.S. Prospectus with
the Commission pursuant to and in accordance with Rule 424(b)(1) or
Rule 424(b)(2) (or, if applicable and if consented to by the
Representatives, subparagraph (5), which consent will not be
unreasonably withheld) not later than the second business day following
the execution and delivery of the Terms Agreement; if the Securities to
be purchased by the Managers are to be registered under the
Registration Statement, the Company will file the International
Prospectus with the Commission pursuant to and in accordance with Rule
424(b)(1) or Rule 424(b)(2) (or, if applicable and if consented to by
the Managers, subparagraph (5), which consent will not be unreasonably
withheld) not later than the second
14
business day following the execution and delivery of the Subscription
Agreement.
(b) The Company will, during the period following the date of
the Terms Agreement as, in the opinion of counsel for the Underwriters,
any U.S. Prospectus or International Prospectus is required by law to
be delivered, advise the Representatives (and Managers) promptly of any
proposal to amend or supplement the Registration Statement or the U.S.
Prospectus or International Prospectus, will furnish the
Representatives (and Managers) with copies of any such amendment or
supplement or other documents proposed to be filed within a reasonable
time in advance of filing, and will afford the Representatives (and
Managers) a reasonable opportunity to comment upon any such proposed
amendment or supplement or other documents; and the Company will also
advise the Representatives (and Managers) promptly of the filing of any
such amendment or supplement.
(c) The Company will advise the Representatives (and Managers)
(i) of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued, (ii)
when any post-effective amendment to the Registration Statement
relating to or covering the Securities becomes effective, (iii) of any
request or proposed request by the Commission for (A) an amendment or
supplement to the Registration Statement (insofar as the amendment or
supplement relates to or covers the Securities), the U.S. Prospectus or
International Prospectus or any document incorporated by reference in
any of the foregoing or (B) any additional information and (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose.
(d) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the U.S. Prospectus or International Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if in the reasonable judgment of the
Underwriters (reasonably concurred in by the Company) it shall be
necessary or desirable during such period to amend or supplement the
U.S. Prospectus or International Prospectus, the Company promptly will
prepare and file with the Commission, subject to subsection 4(b)
hereof, an amendment or supplement which will correct such statement or
omission or otherwise amend or supplement the U.S. Prospectus and
International Prospectus. Neither the Representatives' (or Managers')
consent to, nor the Underwriters' (or Managers') delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
15
(e) As soon as practicable after the date of each Terms
Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(f) The Company will furnish to the Representatives (and
Managers) copies of the Registration Statement (including all exhibits,
the form of Senior Indenture, the form of Subordinated Indenture, the
form of Warrant Agreement, the form of Certificate of Designations and
this Agreement), any related preliminary prospectus, any related
preliminary prospectus supplement, the U.S. Prospectus and
International Prospectus and all amendments and supplements to such
documents, in each case, in such quantities as are reasonably requested
and as soon as available, and, in the case of the U.S. Prospectus and
the International Prospectus, to use its best efforts to make available
copies thereof not later than 12:00 noon, New York City time, on the
business day next succeeding the date of the applicable Terms
Agreement.
(g) The Company will arrange for the qualification of the
Securities for sale under the securities laws of such jurisdictions in
the United States and Canada as the Representatives may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution.
(h) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (and Managers) (i) as soon as publicly available, a
copy of each report or definitive proxy statement of the Company filed
with the Commission under the Securities Exchange Act, or mailed to
stockholders and (ii) from time to time, such other publicly available
information concerning the Company as the Representatives (and
Managers) may reasonably request.
(i) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives (and Managers) may reasonably
designate and the printing of memoranda relating thereto, for any fees
paid to any Trustee, for any fees charged by investment rating agencies
for the rating of the Securities (if applicable), for the filing fees
of the National Association of Securities Dealers, Inc. and any state
relating to the Securities, for the fees and
16
expenses of listing the Securities on any securities exchange or
market, if the Securities are to be listed on any securities exchange
or market, and for expenses incurred in distributing the U.S.
Prospectus and International Prospectus, any preliminary prospectuses
and any preliminary prospectus supplements to Underwriters (or
Managers).
(j) If and to the extent specified in the Terms Agreement, for
a period beginning at the time of execution of the Terms Agreement and
ending such numbers of days after the Closing Date as specified in the
Terms Agreement, without the prior consent of the Representatives (and
Managers), the Company will not offer, sell, contract to sell or
otherwise dispose of any securities that are similar in terms to the
Securities other than in those circumstances specified in the Terms
Agreement.
(k) Until the termination of the offering of the Securities,
to timely file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act.
(l) If the Terms Agreement specifies that the Securities are
to be listed on any stock exchange or exchanges or market, to apply
prior to the Closing Date, unless otherwise agreed to by the
Representatives, for the listing of the Securities on such exchange or
exchanges or market, and to use its reasonable best efforts to complete
such listings.
(m) The Company will not be or become, at any time prior to
the expiration of one year after the date of the applicable Terms
Agreement, an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company that
is or is required to be registered under Section 8 of the Investment
Company Act.
5. Conditions of the Obligations of the Underwriters and Managers. The
obligations of the several Underwriters (and Managers) to purchase and pay for
the Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the written
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives (and Managers) shall have received a letter, dated the
date of delivery thereof, of Ernst & Young LLP (the Company's
independent accountants) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and
schedules examined by them and included in the prospectus
17
or prospectuses contained in the Registration Statement
relating to the Registered Securities, as amended at the date
of such letter, comply in form in all material respects with
the applicable accounting requirements of the Act and the
related published Rules and Regulations.
(ii) they have, as indicated in their report or
reports attached to such letter, made a review of any
unaudited financial statements included in such prospectus in
accordance with standards established by the American
Institute of Certified Public Accountants.
(iii) on the basis of the review referred to in (ii)
above, a reading of the latest available interim financial
statements of the Company, and inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that the unaudited
financial statements, if any, included in such prospectus or
prospectuses do not comply in form in all material respects
with the applicable accounting requirements of the Act, the
Securities Exchange Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in such U.S. Prospectus and International Prospectus.
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such prospectus or
prospectuses (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its Subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(v) from the date of the latest balance sheet of the
Company and its Subsidiaries included or incorporated by
reference in the Prospectuses to a specified date not more
than five days from the date of such letter, there was not any
change in the capital stock of the Company (other than by
reason of shares issued pursuant to the Company's employee or
director stock option plans, or stock ownership plans, stock
bonus plans, stock compensation plans or dividend reinvestment
plans or upon conversion of convertible securities or in
connection with acquisitions or distributions previously
disclosed to the Representatives and Managers), any increase
in the long-term debt or short-term debt of the Company and
its consolidated Subsidiaries or any decrease in
18
consolidated net assets of the Company and its consolidated
Subsidiaries, in each case as compared with amounts shown in
such latest balance sheet or any decrease in consolidated net
sales or the total or per share amounts of consolidated net
income, in each case as compared with the comparable period in
the preceding year, except in each case for changes, increases
or decreases which the Prospectuses disclose have occurred or
may occur or which are described in such letter or letters.
(vi) they have read the unaudited pro forma financial
information, if any, contained in the U.S. Prospectus and the
International Prospectus and nothing came to their attention
that caused them to believe that the unaudited pro forma
financial information does not comply in all material respects
with the applicable requirements of Rule 11.02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of the
unaudited pro forma financial information.
All financial statements and schedules included in material
incorporated by reference into such Prospectuses shall be deemed included in
such Prospectuses for purposes of this subsection.
On or prior to the date of the Terms Agreement, the Representatives
(and Managers) shall have received a letter from an accounting firm acceptable
to the Underwriters (and Managers), dated the date thereof, with respect to any
financial statements of an entity other than the Company which are included in
the U.S. Prospectus and the International Prospectus and not covered by the
letter required to be delivered by ▇▇▇▇▇ & Young LLP, covering substantially the
same required statements described above.
(b) The U.S. Prospectus, and, if applicable, the International
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 4(a) of this Agreement. No stop
order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company
or any Underwriter, shall be contemplated by the Commission.
(c) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited statements included
in the U.S. Prospectus and the International 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 or contemplated in the U.S. Prospectus and the International
Prospectus, and (ii) since the respective dates as of which information
is given in the U.S. Prospectus and the International Prospectus there
shall not have been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its
19
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the U.S. Prospectus and the International Prospectus,
the effect of which, in any such case described in clause (i) or (ii),
is reasonably expected to have a material adverse effect upon the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries, taken as a whole;
(d) Subsequent to the execution of the Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's
debt securities or preferred stock by Fitch IBCA Investors Service
L.P., ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings
Group, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock;
(e) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the reasonable judgment of the Underwriters (or
Managers) makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in
the manner contemplated in the U.S. Prospectus and the International
Prospectus;
(f) The Representatives (and Managers) shall have received an
opinion, dated the Closing Date, of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and
General Counsel of the Company:
(i) with respect to all Securities, to the effect
stated in Annex II-A.
(ii) with respect to all Securities which are Senior
Debt Securities, to the effect stated in Annex II-B.
(iii) with respect to all Securities which are
Subordinated Debt Securities, to the effect stated in Annex
II-C.
(iv) with respect to all Securities which are
Registered Warrant Securities, to the effect stated in Annex
II-D.
(v) with respect to all Securities which are
Registered Preferred Shares, to the effect stated in Annex
II-E.
(vi) with respect to Securities that are Registered
Common Shares, to the effect stated in Annex II-F.
20
Such counsel shall further state in that opinion that
he has participated in the preparation of the Registration
Statement and the Prospectuses, and no facts have come to his
attention that lead him to believe that (i) the Registration
Statement (except for the financial statements, supporting
schedules or other financial data and the Form T-1 included or
incorporated therein, or omitted therefrom, as to which such
counsel need express no opinion), at the time the Registration
Statement became effective, 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 (ii) the Prospectuses, on the date of this
Agreement or at the Closing Date (except for the financial
statements, supporting schedules or other financial data and
the Form T-1 included or incorporated therein, or omitted
therefrom, as to which such counsel need express no opinion),
contained an untrue statement of a material fact or omitted 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. Insofar as such opinion
relates to or involves matters of law of any jurisdiction
other than Ohio, the opinion may be given in reliance on an
opinion of counsel of that jurisdiction, a copy of which
opinion shall be furnished to each Representative (and
Manager), in which case the opinion shall state that he
believes that each Representative (and Manager) and he are
entitled to so rely.
(g) The Representatives (and the Managers) shall have
received from Shearman & Sterling, counsel for the
Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the
Prospectuses, the Indentures, Warrant Agreement or Certificate
of Designations and other related matters as they are prepared
to opine, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. In rendering such
opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to the incorporation
of the Company and all other matters governed by the law of
the State of Ohio upon the opinion of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ referred
to above.
(h) The Representatives (and Managers) shall have
received a certificate, dated the Closing Date, of the
President or any Vice-President and a principal financial or
accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the
Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and
certifying as to the matters in subsections (c) and (d) of
this Section 5 and such other matters as the Underwriter may
reasonably request.
21
(i) The Representatives (and Managers) shall have
received a separate letter ("bring-down letter"), dated the
Closing Date, of Ernst & Young LLP, if applicable, and any
other accounting firm with respect to the financial
statements, if any contemplated by the last paragraph of
subsection (a) of this Section 5 which state in effect that
they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations
thereunder and stating, as of the date of the bringdown letter
(or, with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the U.S. Prospectus and the
International Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial
information and other matters covered by the initial letter
and confirming the conclusions and findings set forth in their
original letter contemplated in subsection (a) of this Section
5.
The Company will furnish the Representatives (and
Managers) with such conformed copies of such opinions,
certificates, letters and documents as they reasonably
request.
(j) Payment for and delivery of the Securities to be
purchased by the Underwriters will occur simultaneously with
the payment for and delivery of the Securities, if any, to be
purchased by the Managers.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter and each Manager against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter and such Manager may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the U.S.
Prospectus and International Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and each
Manager for any legal or other expenses reasonably incurred by such Underwriter
and such Manager in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use in the U.S. Prospectus or by any
Manager specifically for use in the International Prospectus.
(b) Each Underwriter and each Manager, severally and not
jointly, will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
22
Statement, the U.S. Prospectus and International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use in the U.S.
Prospectus, or by any Manager specifically for use in the International
Prospectus, and will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party (absent material
prejudice) of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters and Managers on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters and
Managers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters and Managers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
23
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters and Managers. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters and Managers
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
and Managers were treated as one entity for such purpose) or by any other method
which does not take account of the equitable contributions referred to above in
this subsection (d).
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter or Manager shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter or Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of the Underwriters and
Managers in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter or any Manager within the meaning of the Act; and the obligations of
the Underwriters and Managers under this Section 6 shall be in addition to any
liability which the respective Underwriters and Managers may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters or Managers. If any Underwriter or
Underwriters (or Manager or Managers) default in their obligations to purchase
Securities under the Terms Agreement and the aggregate principal amount or
number of shares, as the case may be, of the Securities that such defaulting
Underwriter or Underwriters (or Manager or Managers) agreed but failed to
purchase does not exceed 10% of the total principal amount or number of shares,
as the case may be, of the Securities, the Representatives (and the Managers)
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters (or Managers),
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters (or non-defaulting Manager or Managers) shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters (or such defaulting Manager or Managers) agreed but failed to
purchase. If any Underwriter or
24
Underwriters (or Manager or Managers) so default and the aggregate principal
amount or number of shares, as the case may be, of the Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount or number of shares, as the case may be, of the Securities to be
purchased by the Underwriters or Managers, as the case may be, and arrangements
satisfactory to the Representatives and the Managers, and the Company for the
purchase of such Securities by other persons are not made within 36 hours after
such default, such Terms Agreement or Terms Agreements will terminate without
liability on the part of any non-defaulting Underwriter and any non-defaulting
Manager, or the Company, except as provided in Section 8 herein. As used in this
Agreement, the term "Underwriter" and "Manager" includes any person substituted
for an Underwriter or a Manager, respectively, under this Section 7. Nothing
herein will relieve a defaulting Underwriter or defaulting Manager from
liability for its default. The respective commitments of the several
Underwriters and Managers, for the purposes of this Section 7, shall be
determined without regard to any reduction in the respective Underwriters'
obligations to purchase the principal amounts or numbers of shares, as the case
may be, of the Securities set forth opposite their names in the Terms Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will
not apply if the Terms Agreement specifies that such obligations and agreements
will not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters and Managers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter or Manager, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Securities. If the Terms Agreement
is terminated pursuant to Section 7 herein or if for any reason the purchase of
the Securities by the Underwriters or Managers under the Terms Agreement is not
consummated, the Company and the Underwriters (and Managers) shall remain
responsible for the expenses to be paid or reimbursed by each of them pursuant
to Section 4 herein, and the respective obligations of the Company and the
Underwriters and the Managers pursuant to Section 6 herein shall remain in
effect. If the purchase of the Securities by the Underwriters and the Managers
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 7, the Company will reimburse the
Underwriters and the Managers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters and the Managers, will be mailed, delivered or
telegraphed and confirmed to them at their addresses furnished to the Company in
writing for the purpose of communications hereunder or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Eaton Center,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters and Managers, if any, as are
identified in the corresponding Terms Agreements and their respective successors
and the officers and directors
25
and controlling persons referred to in Section 6 herein, and no other person
will have any right or obligation hereunder.
11. Applicable Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[The following form of Delayed Delivery Contract will be attached as an annex to
the related Underwriting Agreement and will also be printed separately for
execution purposes. (Omit "Annex I" in execution copies.)]
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on____________ __, __***.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
▇▇▇▇▇ CORPORATION
c/o [REPRESENTATIVE]
[Address]
[Address]
Attention: _________________________
Gentlemen:
The undersigned ▇▇▇▇▇▇ agrees to purchase from ▇▇▇▇▇ Corporation, an
Ohio corporation ("Company"), and the Company agrees to sell to the undersigned,
[If one delayed closing, insert--as of the date hereof, for delivery on
_________, __ ("Delivery Date"),]
[$]__________________ [shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ___________, __ and a
Prospectus Supplement dated _______, __ relating thereto, receipt of copies of
which is hereby acknowledged, at [__% of the principal amount thereof plus
accrued interest, if any,] [$_______ per share plus accrued dividends, if any,]
and on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
*** Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
2
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
[Principal Amount]
Delivery Date [Number of Shares]
------------- ------------------
------------- ------------------
Each of such delivery dates is hereinafter referred to as a Delivery
Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by wire transfer, payable to the order of the Company in Federal (same
day) funds at the office of ___________________ at ___.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to [the][such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the][each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the][such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total [principal
amount][number of shares] of the Securities less the [principal amount][number
of shares] thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by copies of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If
3
this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Yours very truly,
--------------------------------------
(Name of Purchaser)
By
--------------------------------------
(Title of Signatory)
--------------------------------------
--------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
▇▇▇▇▇ CORPORATION
By_____________________________
Title:
▇▇▇▇▇ CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. ) ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
PRINCIPAL AMOUNT: $
INTEREST: [___% per annum, from ______________, payable semiannually on
_____________ and ______________, commencing ______________, to holders of
record on the preceding _______________ or _______________, as the case may be.]
[Zero coupon.]
2
MATURITY: ___________________, 20__.
OPTIONAL REDEMPTION:
SINKING FUND:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued interest[, if
any,] from ______________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject to change
by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking and packaging at the
office of ___________________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
3
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other Representatives or
Underwriters] [On behalf of--themselves--
itself--and as Representative[s] of the
Several] [As] Underwriter[s] By
[REPRESENTATIVE]
By________________________________
[Insert Title]
4
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
----------- ---------------
[UNDERWRITER] $
Total $
==============
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to $______ million principal amount of our [Insert
title of Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No.__________) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been no material adverse change in the financial position
or results of operations of the undersigned and its Subsidiaries except as set
forth in or contemplated by the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By______________________________
[Insert Title]
▇▇▇▇▇ CORPORATION
("COMPANY")
PREFERRED--COMMON--STOCK
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we--We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. )
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
TITLE:
NUMBER OF SHARES: _______ [("Firm Securities")]
[In addition, the Company hereby grants the Underwriters [and
the Managers] an option, exercisable from time to time by the Representatives
(as defined below), to purchase upon written notice from the Representatives
given to the Company not more than 30 days subsequent to the First Closing Date
an aggregate of not more than ___________ additional shares of Securities
("Option Securities") to cover over-allotments at the same price per share as
the Firm Securities and on the same terms, including the terms specified in
Section 5 of the Underwriting Agreement (other than the time for delivery of and
payment for the Option Securities). [Unless otherwise agreed between the
Representatives and [Lead Manager] on behalf of itself and the other Managers,
(i) Option Securities to be so purchased by the Underwriters shall be in the
same proportion as the aggregate amount of Firm Securities to be purchased by
the Underwriters bear to the aggregate amount of Firm Securities to be purchased
by the Underwriters and Managers and (ii) Option Securities to be so purchased
by the Managers shall be in the same proportion as the aggregate amount of Firm
Securities to be purchased by the Managers bear to the aggregate amount of Firm
Securities to be purchased by the Underwriters and Managers.] The Company agrees
to sell to the Underwriters [Managers] such Option Securities and the
Underwriters [Managers] agree, severally and not jointly, to purchase such
Option Securities. Such Option Securities shall be purchased for the account of
each Underwriter
2
[Manager] in the same proportion as the number of shares of Firm Securities set
forth opposite such Underwriter's [Manager's] name in Schedule A hereto bears to
the total number of shares of Firm Securities (subject to adjustment by the
Representatives to eliminate fractions) and may be purchased by the Underwriters
[Managers] only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Option Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Option Securities or any
portion thereof may be surrendered and terminated at any time upon notice by the
Representatives to the Company.]
(1) DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) CONVERSION RIGHTS:
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall
be ______________. Underwriters' fee is $ _______ per share of the Contract
Securities.]
PURCHASE PRICE: $________ per share [If preferred stock issue,
insert--plus accrued dividends[, if any,] from ____________].
EXPECTED REOFFERING PRICE: $_______ per share, subject to change by the
undersigned.
----------
(1) To be included only if Terms Agreement relates to preferred stock.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds
[("First Closing Date)].
[The time for the delivery of and payment for the Option Securities,
being herein referred to as the "Second Closing Date", which may be the First
Closing Date, shall be determined by the Representatives but shall be not
earlier than three nor later than seven business days after written notice of
election to purchase the Option Securities is given. The Company will deliver
the Option Securities to the Representatives [Lead Manager] for the accounts of
the several Underwriters [Managers] against payment of the purchase price
therefor by wire transfer, payable to the order of the Company in Federal (same
day) funds, at the offices of Shearman & Sterling. Payment shall be made in U.S.
dollars. The certificates for the Option Securities will be in definitive form,
in such denominations and registered in such names as the Representatives [Lead
Manager] requests upon reasonable notice prior to the Second Closing Date and
will be made available for checking and packaging at the above office of [Lead
Manager], or, at the option of [Lead Manager], at the office of The Depository
Trust Company, at a reasonable time in advance of the Second Closing Date.]
3
(2) UNDERWRITER[S'][`S] COMPENSATION: $______________, payable to the
[Representative[s] [Lead Manager] for the proportionate accounts of the]
Underwriter[s] [Manager[s]] on the Closing Date.
OTHER TERMS:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]]:
The respective numbers of shares of the Firm Securities to be purchased
by each of the Underwriters [Managers] are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent, amend
this offer to add additional Underwriters [Managers] and reduce the number of
shares to be purchased by the Underwriters [Managers] listed in Schedule A
hereto by the number of shares to be purchased by such additional Underwriters
[Managers].]
-------------
(2) Include if purchase is at public offering price and compensation
payable separately.
The Securities will be made available for checking and packaging at the
office of ___________________, or at the option of ______________________, at
the office of The Depository Trust Company, at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other Representatives or
Underwriters] [On behalf of--themselves--
itself--and as Representative[s] of the
Several] [As] Underwriter[s] [By
REPRESENTATIVE]
By_________________________________
[Insert Title]
[LEAD MANAGER]
[Insert name(s) of other Managers]
By___________________________
4
By_________________________________
[Attorney-in-Fact]
5
SCHEDULE A
UNDERWRITER[MANAGER] NUMBER OF
-------------------- SHARES
[Underwriter].................................
Total...................................... ============
6
To: [REPRESENTATIVES]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
[LEAD MANAGER]
[Insert name(s) of other Managers
c/o [LEAD MANAGER]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ shares(1) of our [Insert title of
Securities]. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By_____________________________
[Insert Title]
------------------
(1) and up to an additional ______ Option Securities pursuant to the option
described therein.
▇▇▇▇▇ CORPORATION
("COMPANY")
WARRANT SECURITIES
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. ) ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
NUMBER TO BE ISSUED:
DEBT WARRANT AGENT:
ISSUABLE JOINTLY WITH DEBT SECURITIES:
DATE FROM WHICH WARRANT SECURITY IS EXERCISABLE:
DATE ON WHICH WARRANT SECURITY EXPIRES:
EXERCISE PRICE(S):
INITIAL PUBLIC OFFERING PRICE:
PURCHASE PRICE:
TITLE OF WARRANT SECURITIES:
OTHER TERMS:
2
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued interest[, if
any,] from ___________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject to change
by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective number of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the number
to be purchased by the Underwriters listed in Schedule A hereto by the number to
be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking and packaging at the
office of ___________________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
3
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other Representatives or
Underwriters] [On behalf of--themselves--
itself--and as Representative[s] of the
Several] [As] Underwriter[s]
By [REPRESENTATIVE]
By_________________________________
[Insert Title]
4
SCHEDULE A
UNDERWRITER NUMBER
-----------
[Underwriter]......................
Total.......................... ============
5
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ number of our [Insert title of Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries except as set forth in or contemplated by
the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By__________________________
[Insert Title]
ANNEX II-A
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(i)
(A) The Company and the Significant Subsidiaries have been duly
incorporated and are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in all jurisdictions in
which their respective ownership of property or the conduct of their respective
businesses requires such qualification (except where the failure to so qualify
would not have a material adverse effect upon the business, properties,
financial condition, results of operations or prospects of the Company and its
Subsidiaries taken as a whole), and have all power and authority necessary to
own their respective properties and conduct the businesses in which they are
engaged and, except as may be disclosed in the Registration Statement and except
to the extent of shares owned of record by directors for the purpose of
qualifying as such, all outstanding shares of capital stock of the Significant
Subsidiaries are owned by the Company directly, or indirectly through wholly
owned Subsidiaries, free and clear of any lien, pledge and encumbrance or any
claim of any third party.
(B) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and, assuming due authorization, execution
and delivery by the purchasers thereunder, are valid and legally binding
obligations of the Company;
(C) The Registration Statement is effective under the Act, no stop
order suspending its effectiveness has been issued, and no proceeding for that
purpose is pending or, to the knowledge of such counsel, threatened by the
Commission;
(D) No order directed to any document incorporated by reference in the
Prospectuses has been issued and, to the knowledge of such counsel, no challenge
has been made to the accuracy or adequacy of any such document;
(E) The documents incorporated by reference in the Registration
Statement and the Prospectuses (except for the financial statements, supporting
schedules and other financial data included or incorporated therein, or omitted
therefrom, as to which such counsel need express no opinion), when they were
filed with the Commission, complied as to form in all material respects with the
requirements of the Securities Exchange Act and the rules and regulations
thereunder;
(F) The Registration Statement and the Prospectuses (except that no
opinion need be expressed as to the financial statements, supporting schedules
and other financial data contained or incorporated therein, or omitted
therefrom) comply as to form in all material respects with the requirements of
the Act and the Rules and Regulations;
(G) The statements made in the Prospectuses under the following (or
comparable) captions: "Description of Debt Securities," "Description of Common
Shares," "Description of Debt Warrants," and "Description of Preferred Shares",
insofar as they purport to summarize the
provisions of documents or agreements specifically referred to therein, fairly
present the information called for with respect thereto by Form S-3 under the
Act;
(H) Such counsel does not know of any litigation or any governmental
proceeding pending or threatened against the Company or any of its Subsidiaries
which is required to be disclosed in the Prospectuses which is not disclosed and
correctly summarized therein;
(I) Such counsel does not know of any contracts or other documents
which are required to be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations, or which are required to be filed as
exhibits to any document incorporated by reference in the Prospectuses by the
Securities Exchange Act or the rules and regulations thereunder, which have not
been filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the Rules and Regulations or
the rules and regulations of the Commission under the Securities Exchange Act;
(J) To the best of such counsel's knowledge, neither the Company nor
any Significant Subsidiary is in violation of its articles or certificate of
incorporation or in default under any material agreement, indenture or
instrument; and
(K) The Company is not, and after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940.
ANNEX II-B
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(ii)
(A) The Senior Indenture has been validly authorized by the Company,
duly executed and delivered by the Company and the Senior Trustee and duly
qualified under the Trust Indenture Act and is a valid and legally binding
instrument of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(B) The Senior Debt Securities not subject to Delayed Delivery
Contracts have been validly authorized, duly executed by authorized officers of
the Company, duly authenticated by the Senior Trustee or the authenticating
agent and delivered, and are the validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(C) The Senior Debt Securities subject to a Delayed Delivery Contract,
if any, have been validly authorized and, when duly executed, authenticated,
issued and delivered to, and paid for by, the respective purchasers thereof
under the related Delayed Delivery Contracts, such Senior Debt Securities will
be validly issued, outstanding and legally binding obligations of the Company,
entitled to the benefits of the Senior Indenture, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(D) The Senior Debt Securities and the Senior Indenture conform in all
material respects to the statements concerning them in the Registration
Statement and the Prospectuses; and
(E) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by the Company with the
provisions contained herein and in the Senior Debt Securities and the Senior
Indenture will not, in any way that would have a material adverse effect upon
the Company and its Subsidiaries taken as a whole, conflict with, or result in
the creation or imposition of, any lien, charge or encumbrance upon any of the
assets of the Company or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any
agreement, indenture or instrument known to such counsel, or result in a
violation of the articles or certificate of incorporation of the Company or any
Significant Subsidiary or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, and any of its
Subsidiaries or their property; and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of this Agreement and the
Delayed Delivery Contracts, if any, except such as may be required by the Act,
the Trust Indenture Act, the Securities Exchange Act, state securities laws or
foreign laws.
ANNEX II-C
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iii)
(A) The Subordinated Indenture has been validly authorized by the
Company, duly executed and delivered by the Company and the Subordinated Trustee
and duly qualified under the Trust Indenture Act and is a valid and legally
binding instrument of the Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(B) The Subordinated Debt Securities not subject to Delayed Delivery
Contracts have been validly authorized, duly executed by authorized officers of
the Company, duly authenticated by the Subordinated Trustee or the
authenticating agent and delivered, and are the validly issued, outstanding and
legally binding obligations of the Company, entitled to the benefits of the
Subordinated Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(C) The Subordinated Debt Securities subject to a Delayed Delivery
Contract, if any, have been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for by, the respective
purchasers thereof under the related Delayed Delivery Contracts, such
Subordinated Debt Securities subject to a Delayed Delivery Contract will be
validly issued, outstanding and legally binding obligations of the Company,
entitled to the benefits of the Subordinated Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(D) The Subordinated Debt Securities, the Subordinated Indenture and,
in the case of Subordinated Debt Securities that are convertible into Registered
Common Shares ("Convertible Subordinated Debt Securities"), the Registered
Common Shares conform in all material respects to the statements concerning them
in the Registration Statement and the Prospectuses;
(E) In the case of Convertible Subordinated Debt Securities, the
Registered Common Shares issuable upon the conversion of the Convertible
Subordinated Debt Securities have been duly authorized and validly reserved for
issuance by the Company and, when issued and delivered in accordance with the
terms of the Convertible Subordinated Indenture, will be validly issued, fully
paid and nonassessable;
(F) In the case of Convertible Subordinated Debt Securities, all
corporate action required to be taken for the authorization, issuance and
delivery of the Registered Common Shares issuable upon conversion of the
Convertible Subordinated Debt Securities has been validly taken, and the
issuance of the Convertible Subordinated Debt Securities is not, and the
issuance of any such Registered Common Shares will not be, subject to the
preemptive rights of any stockholder of the Company; and
(G) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by the Company with the
provisions contained herein and in the Subordinated Debt Securities and the
Subordinated Indenture will not, in any way that would have a material adverse
effect upon the Company and its Subsidiaries taken as a whole, conflict with, or
result in the creation or imposition of, any lien, charge or encumbrance upon
any of the assets of the Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any agreement, indenture or instrument
known to such counsel, or result in a violation of the articles or certificate
of incorporation of the Company or any Significant Subsidiary or any law, order,
rule or regulation of any court or governmental agency having jurisdiction over
the Company, any of its Subsidiaries or their property; and no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance by
the Company of this Agreement and the Delayed Delivery Contracts, if any, except
such as may be required by the Act, the Trust Indenture Act, the Securities
Exchange Act, state securities laws or foreign laws.
ANNEX II-D
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iv)
(A) The Warrant Agreement has been validly authorized by the Company,
and duly executed and delivered by the Company and the Warrant Agent and is a
valid and legally binding instrument of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(B) The Registered Warrant Securities not subject to a Delayed Delivery
Contract have been validly authorized, duly executed by authorized officers of
the Company, duly authenticated by the Warrant Agent and delivered, and are the
validly issued, outstanding and legally binding obligations of the Company,
entitled to the benefits of the Warrant Agreement, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(C) The Registered Warrant Securities subject to a Delayed Delivery
Contract, if any, have been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for by, the respective
purchasers thereof under the related Delayed Delivery Contracts, such Registered
Warrant Securities will be validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Warrant Agreement,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(D) The Senior Indenture has been validly authorized by the Company,
duly executed and delivered by the Company and the Senior Trustee and duly
qualified under the Trust Indenture Act and is a valid and legally binding
instrument of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(E) The Senior Debt Securities issuable upon exercise of the Registered
Warrant Securities have been validly authorized and, when executed,
authenticated, issued and delivered
in accordance with the terms of the Registered Warrant Securities and the Senior
Indenture, will be the validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(F) The Registered Warrant Securities, the Warrant Agreement, the
Senior Debt Securities issuable upon the exercise of the Registered Warrant
Securities and the Senior Indenture conform in all material respects to the
statements concerning them in the Registration Statement and the Prospectuses;
and
(G) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by the Company with the
provisions contained herein and in the Registered Warrant Securities, in the
Warrant Agreement, in the Senior Debt Securities and in the Senior Indenture, if
applicable, will not, in any way that would have a material adverse effect upon
the Company and its subsidiaries taken as a whole, conflict with, or result in
the creation or imposition of, any lien, charge or encumbrance upon any of the
assets of the Company or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument known to such
counsel, or result in a violation of the articles or certificate of
incorporation of the Company or any Significant Subsidiary or any law, order,
rule or regulation of any court or governmental agency having jurisdiction over
the Company, any of its Subsidiaries or their property; and no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance by
the Company of this Agreement and the Delayed Delivery Contracts, if any, except
such as may be required by the Act, the Trust Indenture Act, the Securities
Exchange Act, state securities laws or foreign laws.
ANNEX II-E
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(v)
(A) The Registered Preferred Shares not subject to a Delayed Delivery
Contract have been duly and validly authorized and issued and are fully paid and
nonassessable;
(B) The Registered Preferred Shares subject to a Delayed Delivery
Contract, if any, have been validly authorized and, when duly executed, issued
and delivered to, and paid for by, the respective purchasers thereof under the
related Delayed Delivery Contracts, such Registered Preferred Shares will be
duly and validly issued and fully paid and nonassessable;
(C) If the Registered Preferred Shares are convertible into Registered
Common Shares, the Registered Common Shares issuable upon conversion of the
Registered Preferred Shares have been duly authorized and validly reserved for
issuance by the Company and, when issued and delivered in accordance with the
terms of the Registered Preferred Shares and the Certificate of Designations,
will be validly issued, fully paid and nonassessable;
(D) The Registered Preferred Shares and the Registered Common Shares
conform in all material respects to the statements concerning them in the
Registration Statement and the Prospectuses;
(E) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by the Company with the
provisions contained herein and in the Registered Preferred Shares and the
Certificate of Designations will not, in any way that would have a material
adverse effect upon the Company and its Subsidiaries taken as a whole, conflict
with, or result in the creation or imposition of, any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the
articles or certificate of incorporation of the Company or any Significant
Subsidiary or any law, order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, any of its Subsidiaries or their
property; and no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance by the Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by the Act, the Securities
Exchange Act, state securities laws or foreign laws; and
(F) All corporate action required to be taken for the authorization,
issuance and delivery of any Registered Common Shares issuable upon conversion
of the Registered Preferred Shares has been validly taken, and the issuance of
the Registered Preferred Shares is not, and the issuance of any such Registered
Common Shares will not be, subject to any preemptive rights of any stockholder
of the Company.
ANNEX II-F
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(vi)
(A) The Registered Common Shares have been duly and validly authorized
and issued and are fully paid and nonassessable;
(B) The Registered Common Shares conform in all material respects to
the statements concerning them in the Registration Statement and the
Prospectuses;
(C) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and
compliance by the Company with the provisions contained herein will not, in any
way that would have a material adverse effect upon the Company and its
Subsidiaries taken as a whole, conflict with, or result in the creation or
imposition of, any lien, charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such counsel, or
result in a violation of the articles or certificate of incorporation of the
Company or any Significant Subsidiary or any law, order, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its Subsidiaries or their property; and no consent, authorization or order of,
or filing or registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of this Agreement, except
such as may be required by the Act, the Securities Exchange Act, state
securities laws or foreign laws; and
(D) The issuance of any such Registered Common Shares will not be
subject to any preemptive rights of any stockholder of the Company.