EXHIBIT 1(A)
▇▇▇▇▇▇▇▇'▇ CORPORATION
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
1. INTRODUCTORY. ▇▇▇▇▇▇▇▇'▇ Corporation (the "Company"), a Delaware
corporation, proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives", which term may refer to a single Representative if so
indicated on Schedule I hereto), the principal amount of its securities
identified in Schedule I hereto (the "Securities"), to be issued under an
Indenture, [dated as of October , 1996] as supplemented by Supplemental
Indenture No. to be dated as of (collectively, the "Indenture"),
between the Company and First Union National Bank, as trustee (the "Trustee").
(If the firm or firms listed in Schedule II hereto include only the firm or
firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm
or firms.)
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") (File No. 333-
), which has become effective, for the registration under the
Securities Act of the Securities. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(i) under the Securities Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424(b)(2) or (b)(5)
under the Securities Act a supplement to the form of prospectus included in
registration statement File No. 333- relating to the Securities and
the plan of distribution thereof or (b), if the Company elects to rely on
Rule 434 under the Securities Act, a Term Sheet (as such term is
hereinafter defined) relating to the Securities that shall contain such
information as is required or permitted by Rules 434 and 424(b) under the
Securities Act. The registration statement File No. 333- , including
the exhibits thereto, is hereinafter called the "Registration Statement";
the prospectus in the form in which it appears in registration statement
File No. 333- is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424(b)(2) or (b)(5) (including the
Basic Prospectus as so supplemented) or (ii), if the Company elects to rely
on Rule 434 under the Securities Act, in the form of the Term Sheet as
first filed with the Commission pursuant to Rule 424(b)(7) (together with
the Basic Prospectus), is hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424(b) is hereinafter called the "Preliminary Final
Prospectus". Any abbreviated term sheet that satisfies the requirements of
Rule 434 under the Securities Act is hereinafter called the "Term Sheet."
Any reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the date
of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Securities Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration Statement, as
amended as of any such time, the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Securities Act,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the Exchange Act and the respective rules and regulations thereunder and
(ii) neither the Registration Statement, as amended as of any such time,
nor the Final Prospectus, as amended or supplemented as of any such time,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee, (ii) information,
if any, contained in the Registration Statement or Final Prospectus
relating to the Depository Trust Company ("DTC") and its book-entry system,
or (iii) the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation of
the Registration Statement and the Final Prospectus.
(c) The financial statements of the Company and its consolidated
subsidiaries included in the Registration Statement fairly present the
financial condition of the Company and its consolidated subsidiaries as of
the dates indicated and the results of operations and cash flow for the
periods therein specified; and said financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
stated therein. As used herein, "consolidated subsidiaries" means each
subsidiary of the Company which is included in the consolidated financial
statements of the Company contained in its annual report to shareholders
for 1997 in accordance with the consolidation policies set forth therein or
which would have been so included if it had been a subsidiary of the
Company as of the date of such consolidated financial statements, and each
other subsidiary of the Company which is included in consolidated financial
statements of the Company prepared from time to time thereafter.
(d) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Final Prospectus and prior to the
Closing Date hereinafter mentioned, except as set forth or contemplated in
the Final Prospectus, (1) neither the Company nor any of its consolidated
subsidiaries has entered into any transaction not in the ordinary course of
business which is material to the Company and its consolidated
subsidiaries, considered as a whole, (2) there has been no material adverse
change in the properties, business, financial condition or results of
operations of the Company and its consolidated subsidiaries, considered as
a whole, and (3) no legal or governmental proceeding, which has or will
have materially affected the Company or any of its consolidated
subsidiaries, considered as a whole, or the transactions contemplated by
this Agreement, has been or will have been instituted or threatened.
(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
under, the Restated Certificate of Incorporation or By-Laws of the Company
as presently in effect.
(f) The Securities have been duly and validly authorized and, when
issued, authenticated and delivered against payment therefor in accordance
with the terms of the Indenture and this Agreement, will constitute
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valid and legally binding obligations of the Company entitled to the
benefits of the Indenture, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of equity, and
will conform to the description thereof contained in the Final Prospectus.
The Indenture has been duly authorized by the Company and will be a valid
and legal instrument enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability of creditors' rights
and general principles of equity. The Indenture is duly qualified under the
Trust Indenture Act.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, severally and not jointly, and each Underwriter, severally and
not jointly (unless otherwise indicated on Schedule I hereto), agrees to
purchase from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto, less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form
of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives,
for the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule I hereto of the principal amount of the Securities for which
Delayed Delivery Contracts are made. 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. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set
forth in Schedule II hereto shall be reduced by an amount which shall bear the
same proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in Schedule II
hereto, less the aggregate principal amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall be made at
the office, on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and
the Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company in Federal (same
day) funds, or, if so indicated on Schedule I hereto, in New York
Clearinghouse (same day) funds. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
If so provided in Schedule I hereto, Underwriters' Securities will be
represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with DTC or DTC's
designated custodian. In such case, (a) delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters by causing DTC to credit the Underwriters' Securities
to the account of the Representatives at DTC, and (b) the Company will cause
the certificates representing the Underwriters' Securities to be made
available to the Representatives for inspection not later than 1:00 p.m., New
York City time, on the business day prior to the Closing Date at the office of
DTC or its designated custodian.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing, and
the Company will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 and/or Rule 434 under the Securities Act. The Company will
promptly advise the Representatives (i) when the Final Prospectus shall
have been filed with the Commission pursuant to Rule 424 and/or Rule 434
under the Securities Act, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the 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 threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or Final Prospectus which, in the opinion of counsel
for the Underwriters, may be necessary to enable the several Underwriters
to continue the sale of the Securities, and the Company will use its best
efforts to cause any such amendments to become effective and any such
supplements to be filed with the Commission and approved for use by the
Underwriters as promptly as possible. If at any time when a prospectus
relating to the Securities is required to be delivered under the Securities
Act, any event relating to or affecting the Company occurs as a result of
which the Final 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 statement therein not misleading, or if it is
necessary at any time to amend or supplement the Final Prospectus to comply
with the Securities Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or
which will effect such compliance. For the purposes of this paragraph (b),
the Company will furnish such information with respect to itself as the
Representatives may from time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after the end of
the 12-month period beginning at the end of the current fiscal quarter of
the Company, the Company will make generally available to its security
holders and you an earnings statement covering a period of at least twelve
months beginning not earlier than said effective date which shall satisfy
the provisions of Section 11(a) of the Securities Act.
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(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto and documents incorporated by reference
therein) and each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale under the
securities or blue sky laws of such jurisdictions within the United States
as you designate, will continue such qualifications in effect so long as
required for distribution and will arrange for the determination of the
legality of the Securities for purchase by institutional investors. The
Company shall not be required to register or qualify as a foreign
corporation nor, except as to matters and transactions relating to the
offer and sale of the Securities, consent to service of process in any
jurisdiction.
(f) So long as the Securities shall be outstanding, the Company will
deliver to you (i) as soon as practicable after the end of each fiscal
year, consolidated balance sheets, statements of income, retained earnings
and cash flows of the Company and its consolidated subsidiaries, as at the
end of and for such year and the last preceding year, all in reasonable
detail and audited by independent public accountants, (ii) as soon as
practicable after the end of each of the first three quarterly periods in
each fiscal year, unaudited consolidated balance sheets, statements of
income, retained earnings and cash flows of the Company and its
consolidated subsidiaries, as at the end of and for such period and for the
comparable period of the preceding year, all in reasonable detail, (iii) as
soon as available, all such proxy statements, financial statements and
reports as the Company shall send or make available to its stockholders
generally, and (iv) copies of all such annual, periodic and current reports
as the Company or any subsidiary shall file with the Commission or any
securities exchange.
(g) The Company will apply for the listing of the Securities on the New
York Stock Exchange, Inc.
(h) The Company will pay all costs and expenses in connection with the
transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel; the fees, costs and expenses of
preparing, printing and delivering the Indenture and the Securities; the
fees, costs and expenses of the Trustee; accounting fees and disbursements;
the costs and expenses in connection with the qualification or exemption of
the Securities under state securities or blue sky laws, including filing
fees and reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with any Blue Sky Memorandum; the
costs and expenses in connection with the preparation, printing and filing
of the Registration Statement (including exhibits thereto) and the Basic,
Preliminary Final, and Final Prospectus, the preparation and printing of
this Agreement and the furnishing to the Underwriters of such copies of
each prospectus as the Underwriters may reasonably require; and the fees of
rating agencies. It is understood, however, that, except as provided in
this Section and in Sections 7 and 8 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel and
any advertising expenses connected with any offers they may make.
(i) Until the business day following the Closing Date, the Company will
not, without the consent of the Representatives, offer or sell, or announce
the offering of, any debt securities (other than up to $200,000,000
principal amount of the Company's medium term notes to be issued pursuant
to the Company's Registration Statement on Form S-3 (File No. 333-
)) covered by the Registration Statement or any other registration
statement filed under the Securities Act.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
several Underwriters to purchase and pay for the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date (including the filing of any document incorporated
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by reference therein) and as of the Closing Date, 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:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
pending, or, to the knowledge of the Company, shall be contemplated by the
Commission.
(b) No event, nor any material adverse change in the condition of the
Company, financial or otherwise, shall have occurred, nor shall any event
exist which makes untrue or incorrect any material statement or information
contained in the Registration Statement or the Final Prospectus or which is
not reflected in the Registration Statement or the Final Prospectus, but
should be reflected therein in order to make the statements or information
contained therein not misleading.
(c) You shall have received at the Closing Date (or prior thereto as
indicated) the following:
(i) An opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President, Deputy General
Counsel and Secretary, or a Vice President and Assistant General
Counsel of the Company, dated the Closing Date, to the effect that:
(A) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus.
(B) The Indenture has been duly authorized, executed and delivered
by the Company and the Trustee, is duly qualified under the Trust
Indenture Act, and is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the enforceability
of creditors' rights and general principles of equity.
(C) The Securities have been duly and validly authorized by all
necessary corporate action and, when duly executed on behalf of the
Company, duly authenticated by the Trustee or the Trustee's
authenticating agent, and duly delivered to the several Underwriters
against payment therefor in accordance with the provisions of this
Agreement, in the case of the Underwriters' Securities, or to the
purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of Contract Securities, will constitute legal, valid and
binding obligations of the Company enforceable in accordance with
their terms and entitled to all the benefits of the Indenture,
except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(D) The Indenture and the Securities conform as to legal matters
with the statements concerning them made in the Final Prospectus,
and such statements accurately set forth the provisions thereof
required to be set forth in the Final Prospectus.
(E) This Agreement and any Delayed Delivery Contracts have been
validly authorized, executed and delivered on behalf of the Company.
(F) The Registration Statement and any amendments thereto have
become effective under the Securities Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has been
issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, and the
Registration Statement, the Final Prospectus, and each amendment
thereof or supplement thereto (except for the financial statements
and other financial data included therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the
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requirements of the Securities Act and the Exchange Act and the
respective rules thereunder; such counsel has no reason to believe
that either the Registration Statement or the Final Prospectus, or
any such amendment or supplement, contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the descriptions in the Registration Statement and Final
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in
the Final Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described in
the Registration Statement or Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required.
(G) The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will not result in a breach of any of the terms and
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which,
to the knowledge of such counsel, the Company is a party, or the
Restated Certificate of Incorporation or By-Laws of the Company as
presently in effect or, to the knowledge of such counsel, any order,
rule or regulation applicable to the Company of any court or of any
federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its
properties.
(H) No authorization, approval, consent or other action of any
governmental authority or agency is required in connection with the
sale of the Securities as contemplated by this Agreement or in any
Delayed Delivery Contracts except such as may be required under the
Securities Act or under state securities or blue sky laws.
(ii) Such opinion or opinions of counsel for the Underwriters, dated
the Closing Date, with respect to the sufficiency of all corporate
proceedings and other legal matters relating to this Agreement, any
Delayed Delivery Contracts, the validity of the Securities, the
Registration Statement, the Final Prospectus and other related matters
as you may reasonably request. The Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to render their opinions. In connection with such
opinions, such counsel may rely on representations or certificates of
officers of the Company.
(iii) A certificate of the President or a Vice President, and the
Chief Financial Officer of the Company or its Treasurer, dated the
Closing Date, to the effect that:
(A) The representations and warranties of the Company in Section 2
of this Agreement are true and correct as of the Closing Date, and
the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the Closing Date.
(B) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the
respective signers of the certificate, are contemplated under the
Securities Act.
(C) The signers of the certificate have carefully examined the
Registration Statement and the Final Prospectus; neither the
Registration Statement, the Final Prospectus nor any amendment or
supplement thereto includes, as of the Closing Date, any untrue
statement of a material fact or omits, as of the Closing Date, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; since the latest
respective dates as of which information is given in the
Registration Statement, there has been no material adverse change in
the financial position, business or results of operations of the
Company and its consolidated subsidiaries, considered as a whole,
except as set forth in or contemplated by the Final Prospectus; and
since the effective date of the Registration Statement, as amended,
no event has occurred which is required to be set forth in the Final
Prospectus which has not been so set forth.
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(iv) A letter from Ernst & Young LLP, dated the Closing Date,
addressed to you substantially in the form heretofore approved by you.
(d) Prior to the Closing Date, the Company shall have furnished to you
such further certificates and documents as you may reasonably request.
(e) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any condition of the Underwriters' obligations hereunder required to be
satisfied prior to the Closing Date is not so satisfied, this Agreement may be
terminated by you by notice in writing or by facsimile transmission to the
Company.
In rendering the opinions described in Sections 5(d)(i) and (ii) above, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, other counsel for the Company, and counsel for the
Underwriters may, as to matters involving the laws of any state other than
Illinois, rely upon the opinion or opinions of local counsel satisfactory to
you, but in such case a signed copy of each such opinion shall be furnished to
you.
All such opinions (including opinions, if any, of local counsel),
certificates, letters and documents will be in compliance with the provisions
hereof only if they are in all material respects satisfactory to you and to
counsel for the Underwriters, as to which both you and such counsel shall act
reasonably. The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by
the Company of any one or more of the foregoing conditions or extend the time
for their performance.
6. REPRESENTATION OF THE UNDERWRITERS. Each of the Underwriters severally
represents and warrants to the Company that the information furnished to the
Company in writing by such Underwriter or by you expressly for use in the
preparation of the Registration Statement or the Final Prospectus does not,
and any amendments thereof or supplements thereto thus furnished will not,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
7. TERMINATION OF AGREEMENT. This Agreement may be terminated by you on
behalf of the Underwriters by notice in writing delivered to the Company prior
to the Closing Date if prior to such time (i) trading in the Company's common
stock shall have been suspended by the Commission on the New York Stock
Exchange for a period of twenty-four hours or more or trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited, in either case to such a degree as would in your judgment
materially adversely affect the market for the Securities; (ii) a general
moratorium on commercial banking activities in the State of New York or the
United States shall have been declared by Federal authorities; or (iii) there
has occurred any material outbreak, or material escalation, of hostilities
involving the United States or other national or international calamity or
crisis, of such magnitude and severity in its effect on the financial markets
of the United States, in your reasonable judgment, as to prevent or materially
impair the marketing, or enforcement of contracts for sale, of the Securities.
If this Agreement shall be terminated by you because of any failure on the
part of the Company to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, the Company shall pay, in
addition to the costs and expenses referred to in Section 4(h), all reasonable
out-of-pocket expenses incurred by the Underwriters in contemplation of the
performance by them of their obligations hereunder, including but not limited
to the reasonable fees and disbursements of counsel for the Underwriters, the
Underwriters' reasonable printing and traveling expenses, and postage and
telephone charges relating directly to the offering contemplated by the Final
Prospectus, and also including advertising expenses incurred after the
effective date of the Registration Statement, it being understood that such
out-of-pocket expenses shall not include any compensation, salaries or wages
of the officers, partners or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters for
damages on account of loss of anticipated profits arising out of the
transactions contemplated by this Agreement.
8
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject, under the
Securities Act, the Exchange 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 or any amendment thereof, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
any amendment or supplement thereto, 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 such controlling person for any legal
or other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; 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 or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in the
preparation thereof; and provided, further, that the foregoing indemnification
with respect to the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities, if such Underwriter
failed to send or give copies of the Final Prospectus, as amended or
supplemented, excluding documents incorporated therein by reference, to such
person at or prior to the written confirmation of the sale of such Securities
to such person in any case where such delivery is required by the Securities
Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company either within the
meaning of the Securities Act or the Exchange Act, each of its directors and
each of its officers who has signed the Registration Statement, against any
losses, claims, damages or liabilities to which the Company, any such
controlling person or any such director or officer may become subject, under
the Securities Act, the Exchange Act, or otherwise, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through you specifically for use
in the preparation of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page of the Final Prospectus and
under the heading "Underwriting" or "Plan of Distribution" and, if Schedule I
hereto provides for sale of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Final Prospectus, and you confirm that such statements are correct.
This indemnity agreement will be in addition to any liability which each such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party in writing 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 this Section. 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 in and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include
both the indemnified party
9
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt by such indemnified party of notice
from the indemnifying party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed such counsel in connection with the assumption of legal defenses
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Representatives of
the Underwriters in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) or (b), as the case may be, who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; provided, further,
that, with respect to legal and other expenses incurred by an indemnified
party for which an indemnifying party shall be liable hereunder, all such
legal fees and expenses shall be reimbursed by the indemnifying party as they
are incurred.
(d) In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section 8
is due in accordance with its terms but is for any reason held by a court to
be unavailable from the Company on grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting discount bears to the sum of such discount and the
purchase price of the Securities set forth in Schedule I hereto and the
Company is responsible for the balance; provided, however, that (i) in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of the Securities
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Securities
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clause (i) of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If the Underwriters' obligations to purchase
Securities pursuant to Section 3 hereof are several and not joint and if any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement and unless
otherwise provided in Schedule I hereto, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bear to the aggregate amount of Securities set opposite the names of
all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in
10
Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
indemnities, agreements, representations and warranties of the Company and the
several Underwriters, set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed,
delivered or sent by facsimile transmission and confirmed to them, at the
address specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or sent by facsimile transmission and confirmed to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of the
Treasurer, with a copy to the Controller.
12. SUCCESSORS; GOVERNING LAW. This Agreement will inure to the benefit of
and be binding upon the parties hereto and the officers and directors and
controlling persons referred to in Section 8 hereof and their respective
successors, assigns, heirs, executors and administrators, and no other persons
will have any right or obligation hereunder. The terms "successors" and
"assigns" as used herein shall not include a purchaser as such from any
Underwriter. This Agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
13. BUSINESS DAY. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our agreement,
sign and return to us the enclosed duplicate hereof, whereupon it will become
a binding agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇'▇ CORPORATION
By: _________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted by
us in Chicago, Illinois, acting on
behalf of ourselves, the other Rep-
resentatives (if any), and the sev-
eral Underwriters (if any) named in
Schedule II annexed hereto, as of
the date first above written.
[NAME OF REPRESENTATIVE]
By: _________________________________
Date:
11
SCHEDULE I
UNDERWRITING AGREEMENT DATED
REGISTRATION STATEMENT NO.
REPRESENTATIVES:
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriter (include accrued interest or amortization if
applicable):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Other Provisions:
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is:
several and not joint [_]
several and not joint; provided, however that,
notwithstanding the provisions of Section 9 of the
Underwriting Agreement, the Representative(s)
listed above will, subject to the terms and
conditions hereof, purchase or cause to be
purchased any Securities which any defaulting
Underwriter or Underwriters have agreed but failed
or refused to purchase pursuant to Section 3
hereof [_]
joint and several [_]
Payment to Be Made in: New York Clearinghouse (same day) funds [_]
or Federal (same day) funds [_]
Delivery of Securities: Physical delivery to Underwriters through
Representatives [_]
or delivery to Underwriters through facilities of
DTC by delivery to DTC of one or more definitive
global securities in book-entry form [_]
CLOSING DATE, TIME AND LOCATION:
[Delayed Delivery Arrangements:
Payment to Be Made in: New York Clearinghouse (same day) funds [_]
or Federal (same day) funds [_]
Fee:
Minimum principal amount of each contract:
Maximum aggregate prinicipal amount of all contracts:]
ADDRESS FOR NOTICE TO REPRESENTATIVES:
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT
------------ ----------------
$
------
Total................................................ $
======
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇▇▇'▇ Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on ,
19 , (the "Delivery Date"), $
principal amount of the Company's
(the "Securities") offered by the Company's Final Prospectus
dated , 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus accrued
interest, if any, thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM on the Delivery Date to or upon the order of the Company
in New York Clearinghouse (same day) funds or Federal (same day) funds, as
specified in Schedule I to the Underwriting Agreement referred to in the Final
Prospectus mentioned above, at your office or at such other places as shall be
agreed between the Company and the undersigned upon delivery to the
undersigned of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
and (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Final
Prospectus mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
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 acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required 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, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed and enforced in accordance
with, the internal laws of the State of Illinois.
Very truly yours,
-------------------------------------
(Name of Purchaser)
By __________________________________
(Signature and Title of Officer)
-------------------------------------
(Address)
Accepted:
▇▇▇▇▇▇▇▇'▇ CORPORATION
By __________________________________
(Authorized Signature)