Exhibit 1-g
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
FORM OF
UNDERWRITING AGREEMENT
January [ ], 2006
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware corporation (the "Company"), proposes to issue
and sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as managers (the "Managers"), the principal amount of
its debt securities identified in Schedule I hereto (the "Securities"), to be
issued under the indenture specified in Schedule I hereto (the "Indenture")
between the Company and the Trustee identified in such Schedule (the "Trustee").
If the firm or firms listed in Schedule II hereto include only the Managers
listed in Schedule I hereto, then the terms "Underwriters" and "Managers" as
used herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus (the file number
of which is set forth in Schedule I hereto) on Form S-3, relating to (a) its
debt securities ("Debt Securities"), (b) warrants to purchase or sell (i)
securities issued by the Company or by an entity affiliated or not affiliated
with the Company, a basket of such securities, an index or indices of such
securities or any other property, (ii) currencies, (iii) commodities or (iv) any
combination of the foregoing (collectively, the "Warrants") and (c) purchase
contracts ("Purchase Contracts") requiring the holders thereof to purchase or
sell (i) securities issued by the Company or by an entity affiliated or not
affiliated with the Company, a basket of such securities, an index or indices of
such securities or any other property, (ii) currencies, (iii) commodities or
(iv) any combination of the above. Any combination of Debt Securities, Purchase
Contracts, Warrants, shares of the Company's preferred stock ("Preferred
Stock"), shares of the Company's common stock, par value $.01 per share ("Common
Stock"), and debt obligations issued by an entity affiliated or not affiliated
with the Company may be offered in the form of Units ("Units" and, collectively,
the "Shelf Securities"), including the Securities, to be issued from time to
time by the Company. As used herein, the term "Debt Securities" includes prepaid
Purchase Contracts issued under an indenture. The registration statement as
amended to the date of this Agreement, including the information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter referred
to as the "Registration Statement," and the related prospectus covering the
Shelf Securities dated November 14, 2005 in the form first used to confirm sales
of the Securities (or in the form first made available to the Underwriters by
the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the "Basic Prospectus." The Basic
Prospectus, as supplemented by the prospectus supplement specifically relating
to the Securities in the form first used to confirm sales of the Securities (or
in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the " Prospectus," and the term "preliminary
prospectus" means any preliminary form of the Prospectus. For purposes of this
Agreement, "free writing prospectus" has the meaning set forth in Rule 405 under
the Securities Act and "Time of Sale Prospectus" means the Basic Prospectus and
the preliminary prospectus together with the free writing prospectuses, if any,
identified in Schedule I hereto. The term "broadly available road show" means a
"bona fide electronic road show" as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any person.
As used herein, the terms "Registration Statement," "Basic Prospectus,"
"preliminary prospectus," "Time of Sale Prospectus" and "Prospectus" shall
include the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are deemed to be
incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain any 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, (iii) the Registration Statement as of the
date hereof does not contain any untrue statement of a material fact or omit to
state a material fact
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required to be stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply, in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time
of each sale of the Securities in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing
Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or (B) those
parts of the Registration Statement that constitute the Statements of
Eligibility (Forms T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the trustees referred to in the Registration
Statement.
(c) The Company is not an "ineligible issuer" in connection with the
offering of Securities pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant
to Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used
or referred to by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule I hereto, and electronic road
shows, if any, each furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
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(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the
Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and equitable principles of general applicability.
(h) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the Indenture.
(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture and the
Securities, will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or other
instrument
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binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities; provided, however, that no
representation is made as to whether the purchase of the Securities constitutes
a "prohibited transaction" under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended.
(j) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus.
(k) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its consolidated subsidiaries is a party or to which
any of the properties of the Company or any of its consolidated subsidiaries is
subject (i) other than proceedings accurately described in all material respects
in the Time of Sale Prospectus and proceedings that would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its obligations
under this Agreement, the Indenture or the Securities or to consummate the
transactions contemplated by the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so
described and there are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(m) The Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
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(n) Each of the Company and its consolidated subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Time of Sale
Prospectus, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(o) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Inc. is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
(p) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Securities set forth in Schedule II
hereto opposite its name at the purchase price set forth in Schedule I hereto.
3. Public Offering. The Company is advised by you that the Underwriters
propose to make a public offering of their respective portions of the Securities
as soon after this Agreement has become effective as in your judgment is
advisable. The Company is further advised by you that the Securities are to be
offered to the public upon the terms set forth in the Prospectus.
4. Payment and Delivery. Payment for the Securities shall be made to the
Company in Federal or other funds immediately available in New York City at the
closing time and place set forth in Schedule I hereto, or at such other time on
the same or such other date, not later than the fifth business day thereafter,
as may be designated by you in writing. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for the Securities shall be made against delivery to you on the
Closing Date for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as you shall
request in writing not less than one full business day prior to the Closing
Date,
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with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the
securities of the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
consolidated subsidiaries, taken as a whole, from that set forth in the
Time of Sale Prospectus, that, in your judgment, is material and adverse
and that makes it, in your judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of
Sidley Austin LLP, outside counsel to the Company, or of other counsel
satisfactory to you and who may be an officer of the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and is
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duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(ii) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Inc., Discover Bank, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Holdings Inc. (the
"Material Subsidiaries") has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Time of Sale Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Time of Sale Prospectus, except to
the extent that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole;
(iv) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and equitable principles of general
applicability;
(v) the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and equitable principles of general applicability;
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(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture or the Securities
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Securities;
provided, however, that such counsel need not express an opinion as to
whether the purchase of the Securities constitutes a "prohibited
transaction" under Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended;
(viii) the statements relating to legal matters, documents or
proceedings included in (A) the Time of Sale Prospectus and the Prospectus
under the captions "Description of Debt Securities" and "Plan of
Distribution," (B) the Registration Statement in Item 15, (C) "Item 3.
Legal Proceedings" of the most recent annual report on Form 10-K
incorporated by reference in the Time of Sale Prospectus and the Prospectus
and (D) "Item 1. Legal Proceedings" of Part II of the quarterly reports on
Form 10-Q, if any, filed since such annual report and incorporated by
reference in the Time of Sale Prospectus and the Prospectus, in each case
fairly summarize in all material respects such matters, documents or
proceedings;
(ix) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
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reference as exhibits to the Registration Statement that are not described,
filed or incorporated by reference as required;
(x) the Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xi) such counsel is of the opinion ascribed to it in the Prospectus
Supplement under the caption "United States Federal Taxation"; and
(xii) (A) in the opinion of such counsel (1) each document filed
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein, as to which such counsel need not express any opinion)
appeared on its face to be appropriately responsive as of its filing date
in all material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (2) the
Registration Statement and the Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein and except for those parts of the Registration Statement
that constitute the Forms T-1, as to which such counsel need not express
any opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (B)
nothing has come to the attention of such counsel that causes such counsel
to believe that (1) any part of the Registration Statement, when such part
became effective (except for the financial statements and financial
schedules and other financial and statistical data included therein and
except for those parts of the Registration Statement that constitute Forms
T-1, as to which such counsel need not express any belief) contained any
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, (2) the Registration Statement or the Prospectus (except
for the financial statements and financial schedules and other financial
and statistical data included therein and except for those parts of the
Registration Statement that constitute Forms T-1, as to which such counsel
need not express any belief) on the date of this Agreement, contained any
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, (3) the Time of Sale Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
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included therein, as to which such counsel need not express any belief), as
of the date of this Agreement or as amended or supplemented, if applicable,
as of the Closing Date contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made not
misleading or (4) the Prospectus (except for the financial statements and
financial schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief), as amended
or supplemented, if applicable, as of the Closing Date contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in Sections 5(c)(iv), 5(c)(v), 5(c)(vi)
and 5(c)(viii) (but only as to statements in the Prospectus under "Description
of Debt Securities" and "Plan of Distribution"), and Sections 5(c)(xii)(A)(2),
5(c)(xii)(B)(2), 5(c)(xii)(B)(3) and 5(c)(xii)(B)(4) above.
With respect to Section 5(c)(xii) above, if such opinion is given by
counsel who is also an officer of the Company, such counsel may state that his
or her opinion and beliefs are based upon his or her participation, or the
participation of someone under his or her supervision, in the preparation of the
Registration Statement, the Time of Sale Prospectus and the Prospectus and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
With respect to Section 5(c)(xii) above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and, if Sidley
Austin LLP is giving such opinion, Sidley Austin LLP (i) may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, the free writing prospectuses identified as
part of the Time of Sale Prospectus in Schedule I hereto, the prospectus
supplement and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents of the
Registration Statement, the Time of Sale Prospectus and the Prospectus
(including documents incorporated by reference), but are without independent
check or verification, except as specified, and (ii) need express no opinion or
belief as to the conveyance of the Time of Sale Prospectus or the information
contained therein to investors.
The opinion of Sidley Austin LLP, or any other outside counsel for the
Company, described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
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(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Managers, from
the Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement, the Time of Sale Prospectus and the Prospectus; provided that each
letter so furnished shall use a "cut-off date" no more than three business days
prior to the date of such letter.
6. Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a) To furnish to you without charge, a signed copy of the Registration
Statement (including exhibits thereto and documents incorporated by reference)
and to deliver to each of the Underwriters during the period mentioned in
Section 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated therein by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time
of Sale Prospectus or the Prospectus to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed free writing prospectus to which you reasonably
object.
(d) Not to take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Time of Sale Prospectus in order to make
the statements therein, in the light of the circumstances, not misleading, or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to
12
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at the Company's own
expense, to the Underwriters and to any dealer upon request, either amendments
or supplements to the Time of Sale Prospectus so that the statements in the Time
of Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) under the Securities
Act) is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus (or in
lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at the Company's own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Securities
may have been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To make generally available to the Company's security holders and to
you as soon as practicable an earning statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring
after the date of this Agreement, which shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the
13
Securities under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Securities (within the time
required by Rule 456(b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities for
offer and sale under state securities laws as provided in Section 6(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Securities
by the National Association of Securities Dealers, Inc., (v) any fees charged by
the rating agencies for the rating of the Securities, (vi) the cost of the
preparation, issuance and delivery of the Securities, (vii) the costs and
charges of any trustee, transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (ix) the
document production charges and expenses associated with printing this Agreement
and (x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution," and the last paragraph
of Section 10 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable on
resale of any of the Securities by them and any advertising expenses connected
with any offers they may make.
(j) If the third anniversary of the initial effective date of the
Registration Statement occurs before all the Securities have been sold by the
Underwriters, prior to the third anniversary to file a new shelf registration
14
statement and to take any other action necessary to permit the public offering
of the Securities to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared
effective by the Commission.
(k) During the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company, warrants to purchase or otherwise
acquire debt securities of the Company, warrants, purchase contracts or units
substantially similar to the Securities (other than (i) the Securities, (ii)
commercial paper issued in the ordinary course of business or (iii) securities
or warrants permitted with the prior written consent of the Manager identified
in Schedule I with the authorization to release this lock-up on behalf of the
Underwriters).
(l) To prepare a final term sheet relating to the offering of the
Securities, containing only information that describes the final terms of the
Securities or the offering in a form consented to by you, and to file such final
term sheet within the period required by Rule 433(d)(5)(ii) under the Securities
Act following the date the final terms have been established for the offering of
the Securities.
7. Covenants of the Underwriters. Each of the several Underwriters
represents and agrees with the Company that it will not take any action that
would result in the Company being required to file with the Commission under
Rule 433(d) a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue
15
statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager authorized to appoint counsel under this
Section 8 as set forth in Schedule I hereto, in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an
16
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding 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 includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate initial public offering price
of the Securities as set forth in the Prospectus. The relative fault of the
Company on the one hand and of the Underwriters on the other hand 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 by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective principal amounts of Securities they
have purchased hereunder, and not joint.
17
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect,
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
9. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company if, after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States or other relevant jurisdiction shall have occurred, (iv) any
moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets (or, if the
Securities are denominated in a currency other than U.S. dollars, any change in
currency exchange rates or controls) or any calamity or crisis that, in your
18
judgment, is material and adverse and which, singly or together with any other
event specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Time of Sale Prospectus or the
Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule II bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 10 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with 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 will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
19
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the Securities,
represents the entire agreement between the Company and the Underwriters with
respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and
sale of the Securities.
(b) The Company acknowledges that in connection with the offering of the
Securities: (i) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (ii) the
Underwriters owe the Company only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Securities.
12. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. Notices. All communications hereunder shall be in writing and effective
only upon receipt and if to the Underwriters shall be delivered, mailed or sent
to you at the address set forth in Schedule I hereto; and if to the Company
shall be delivered, mailed or sent to the address set forth in Schedule I
hereto.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
---------------------------------
Name:
Title:
20
Accepted as of the date hereof
[NAMES OF COMANAGERS]
Acting severally on behalf of themselves and the
several Underwriters named in Schedule II
hereto
By: [NAMES OF COMANAGERS]
By:
-------------------------------------------
Name:
Title:
21
SCHEDULE I
Managers:
Manager authorized to release lock-
up under Section 6(k):
Manager authorized to appoint
counsel under Section 8(c):
Indenture: Senior Debt Indenture dated as of
November 1, 2004 between the
Company and the Trustee
Trustee: JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank)
Registration Statement File No.: 333-129243
Time of Sale Prospectus 1. Prospectus dated November 14, 2005
relating to the Shelf Securities
2. [The preliminary prospectus
supplement dated relating to the
Securities]
3. [Any free writing prospectuses]
Securities to be purchased:
CUSIP/ISIN/Common Code:
Aggregate Principal Amount:
Purchase Price:
Price to Public:
Maturity Date:
Original Issue Date:
Accrual Date:
Base Rate:
A-1
Index Maturity:
Spread (Plus or Minus):
Initial Floating Interest Rate:
Interest Reset Period:
Interest Reset Dates:
Initial Interest Reset Date:
Interest Payment Dates:
Interest Payment Period:
Optional Repayment Date(s):
Optional Redemption Date(s):
Initial Redemption Date(s):
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Ranking:
Minimum Denominations:
Place of Delivery:
Specified Currency:
Closing Date and Time:
Closing Location:
Address for Notices to Underwriters:
Address for Notices to the Company:
A-2
SCHEDULE II
Principal Amount
of Securities To Be
Underwriter Purchased
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Total.............................................. $
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B-1