EXHIBIT 1.2
EXECUTION COPY
UNDERWRITING AGREEMENT
May 10, 2001
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
We (the "MANAGER") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "UNDERWRITERS"), and we understand that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "COMPANY"), proposes to issue and sell $320,756,000
aggregate principal amount at maturity of Zero Coupon Convertible Debentures Due
2021 (the "DEBT SECURITIES"). (The Debt Securities are also referred to herein
as the "OFFERED SECURITIES.") The Debt Securities will be issued pursuant to
the provisions of an Indenture dated as of May 8, 1998, as supplemented by a
supplemental indenture thereto to be dated as of May 16, 2001 (as so
supplemented, the "INDENTURE") between the Company and Bank One, National
Association, as successor to the First National Bank of Chicago, as Trustee (the
"TRUSTEE").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below opposite their
names at a purchase price of 76.577% of the principal amount at maturity of Debt
Securities, plus accrued original issue discount, if any, from May 16, 2001 to
the date of payment and delivery:
PRINCIPAL AMOUNT AT
MATURITY OF
NAME DEBT SECURITIES
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated........... $320,756,000
------------
Total.................................. $320,756,000
============
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, at 10:00
a.m. (New York City time) on May 16, 2001, or at such other time, not later than
5:00 p.m. (New York City time) on May 16, 2001, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter referred
to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated May 8, 1998, and the Prospectus Supplement dated May 10, 2001, including
the following:
Terms of Debt Securities
Maturity Date: May 17, 2021
Interest: Zero Coupon
Yield to Maturity: 1.25%
First Call Date: May 17, 2004
Form and Denomination: Registered; integral multiples of
$1,000 principal amount at maturity
Investor Put Dates: May 17, 2004, 2009 and 2014
Conversion: Convertible initially into 8.1961
shares of Common Stock per $1,000
principal amount at maturity
Lock-Up Period: The period of time referred to in
Section 6(g) of the Standard
Provisions is 90 days after the date
of this Underwriting Agreement
All provisions contained in the document entitled ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
May 9, 2001 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
EXECUTION COPY
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
May 10, 2001
From time to time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a Delaware corporation (the
"COMPANY"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "BASIC PROSPECTUS" means the prospectus included in
the Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus", and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "SUPPLEMENT,"
"AMENDMENT" and "AMEND" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
The term "CONTRACT SECURITIES" means the Offered Securities to be purchased
pursuant to the delayed delivery contracts substantially in the form of Schedule
I hereto, with such changes therein as the Company may approve (the "DELAYED
DELIVERY CONTRACTS"). The term "UNDERWRITERS' SECURITIES" means the Offered
Securities other than Contract Securities.
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 under the Securities
Act; 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 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 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 and
(iv) 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 (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), of the
Trustee.
(c) 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 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 subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under
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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 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 subsidiaries, taken
as a whole; and except as set forth in the Registration Statement, all of
the issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-
assessable and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general principles of
equity.
(g) The shares of the Company's common stock, par value $.01 per share
(the "COMMON STOCK"), outstanding on the date hereof have been duly
authorized and are validly issued, fully paid and non-assessable.
(h) The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(i) The Offered 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 the Underwriting Agreement, in the case of the Underwriters' Securities,
or by institutional investors in accordance with the terms of the Delayed
Delivery Contracts, in the case of the Contract Securities, 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 or
similar laws affecting creditors' rights generally and general principles
of equity.
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(j) When the Offered Securities are delivered and paid for pursuant to
the Underwriting Agreement or the Delayed Delivery Contracts, such Offered
Securities will be convertible into Common Stock of the Company in
accordance with the terms of the Indenture; the shares of Common Stock
initially issuable upon conversion of such Offered Securities have been
duly authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the Common Stock conforms to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock.
(k) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(l) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Securities
Act.
(m) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts 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 binding upon the
Company or any of its subsidiaries that is material to the Company and its
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 subsidiary, 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, the Offered Securities or the Delayed Delivery Contracts, 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 Offered Securities.
(n) There has not occurred any 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
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in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(o) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or 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 reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(p) 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.
(q) The Company is not and, after giving effect to the offering and sale
of the Offered 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.
(r) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. There has been no storage, disposal,
generation, transportation, handling or treatment of hazardous substances
or solid wastes by the Company and its subsidiaries (or to the knowledge of
the Company, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company and its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which requires remedial
action by the
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Company and its subsidiaries under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not result in, or which would not be reasonably
likely to result in, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the Company
and its subsidiaries, taken as a whole, and there has been no spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any solid wastes or hazardous substances due to or caused by the Company
and its subsidiaries, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not result in or would
not be reasonably likely to result in, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the Company and its
subsidiaries, taken as a whole. For purposes of this provision, the terms
"hazardous substances" and "solid wastes" shall have the meanings specified
in any applicable Environmental Laws.
(s) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(t) The Company and its subsidiaries own or possess adequate patent
rights or licenses or other rights to use patent rights, inventions,
trademarks, service marks, trade names, copyrights, technology and know-how
necessary to conduct the general business now or proposed to be operated by
them as described in the Prospectus, except where failure to do so would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole; neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any patent, patent rights, inventions, trademarks,
service marks, trade names, copyrights, technology or know-how which,
singularly or in the aggregate, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(u) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the businesses in which they are engaged;
neither the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and except as described in the Prospectus,
neither the Company nor any such subsidiary has any
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reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, then the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by the Company of
the types set forth in the Prospectus. On the Closing Date, the Company will pay
to the Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of the Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, then the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public offering
of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made to the Company in
Federal or other funds immediately available at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities registered
in such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
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Delivery on the Closing Date of any Debt Securities in bearer form shall be
effected by delivery of a single temporary global Debt Security without coupons
(the "GLOBAL DEBT SECURITY") evidencing the Offered Securities that are Debt
Securities in bearer form to a common depositary for ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels office, as operator of the Euro-clear System
("EURO-CLEAR"), and for Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") for credit to the respective accounts at Euro-clear or Cedel of each
Underwriter or to such other accounts as such Underwriter may direct. Any Global
Debt Security shall be delivered to the Manager not later than the Closing Date,
against payment of funds to the Company in the net amount due to the Company for
such Global Debt Security by the method and in the form set forth in the
Underwriting Agreement. The Company shall cause definitive Debt Securities in
bearer form to be prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided in or pursuant to
the Indenture; provided, however, that the Global Debt Security shall be
exchangeable for definitive Debt Securities in bearer form only on or after the
date specified for such purpose in the Prospectus.
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 the Underwriting
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 any of the
Company's securities 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 subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Manager, is material and adverse and that makes it, in
the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
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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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., outside counsel for the Company, dated
the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity;
(iii) the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity;
(iv) the Offered 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 the Underwriting Agreement, in the case
of Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(v) the Offered Securities will be convertible into Common
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Stock of the Company in accordance with the terms of the Indenture;
the shares of Common Stock initially issuable upon conversion of the
Offered Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable; the outstanding shares
of Common Stock have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have
no preemptive rights with respect to the Common Stock;
(vi) 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, the Offered Securities, or the Delayed
Delivery Contract, 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 Offered Securities;
(vii) the statements (A) in the Prospectus under the
captions "Description of Debt Securities," "Description of Capital
Stock," "Plan of Distribution" and "Underwriters," (B) in the
Registration Statement under Item 15, (C) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (D) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-
Q, if any, filed since such annual report, in each case insofar as
such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(viii) the Company is not and, after giving effect to the
offering and sale of the Offered 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;
(ix) such counsel is of the opinion that the statements of
legal matters in the Prospectus regarding U.S. tax matters are
accurate in all material respects;
(x) such counsel (A) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and
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incorporated by reference in the Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) has no reason to believe
that (except for financial statements and schedules as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such part
became effective, contained and, as of the date such opinion is
delivered, contains any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) is of the
opinion that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (D) has no reason to believe
that (except for financial statements and schedules as to which such
counsel need not express any belief) the Prospectus as of the date
such opinion is delivered 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 and (E) is of the opinion that the
Registration Statement has become effective under the Securities Act,
that any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) under the Securities Act has been
made in the manner and within the time period required by Rule 424(b),
that to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened.
(d) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, General Counsel and Secretary
to the Company, dated the Closing Date, covering the matters referred to in
sections 5(c)(i), 5(c)(iii), 5(c)(v), 5(c)(vii)(C), 5(c)(vii)(D), and
5(c)(x) above and to the further effect that:
(i) 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 Prospectus and is duly qualified to transact
11
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 subsidiaries, taken as a whole;
(ii) each of ▇▇▇▇▇▇ Turbocompressor, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(U.K.) Limited (each, a "PRINCIPAL SUBSIDIARY") 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 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 subsidiaries, taken as
a whole;
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act;
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities, and the Delayed Delivery
Contracts 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 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 subsidiary; and
(v) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
12
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its 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 reference as exhibits to the Registration Statement
that are not described, filed or incorporated as required.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections 5(c)(i),
5(c)(ii), 5(c)(iii), 5(c)(iv), 5(c)(v) (but only as to the Common Stock
issuable upon conversion of the Offered Securities), 5(c)(vi) and 5(c)(vii)
(but only as to the statements in the Prospectus under "Description of Debt
Securities" and "Plan of Distribution") and clauses 5(c)(x)(B) and
5(c)(x)(D) above.
With respect to Section 5(c)(x) above, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may
state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to clauses 5(c)(x)(B), and 5(c)(x)(D) above, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may
state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. described in Section 5(c) above
shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
The opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ described in Section 5(d) above shall
be rendered to the Underwriters at the request of the Company and shall so
state therein.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters, 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
13
by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents
incorporated by reference therein) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto but including documents incorporated by reference) and to
furnish the Manager in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c) below, as many
copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus 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 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 its own
expense, to the Underwriters and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities may
have been sold by the Manager 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 is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
14
Manager shall reasonably request.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earning statement
shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date or the later
date specified in the Underwriting Agreement, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar
to the Offered Securities (other than (i) the Offered Securities and (ii)
commercial paper issued in the ordinary course of business), without the
prior written consent of the Manager.
(g) If the Offered Securities are convertible into Common Stock, the
Company will not offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or dispose
of, directly or indirectly, or enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any transaction is
to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, or file with the Commission a registration statement under
the Securities Act relating to, any additional shares of its Common Stock
or securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make any
such offer, pledge, sale, contract, disposition or filing, without the
prior written consent of the Manager for the period specified in the
Underwriting Agreement other than (i) grants of stock and options relating
to stock-based benefit plans in existence on the date of the Underwriting
Agreement, (ii) Common Stock issued to the shareholders of an acquired
company if the shares so issued would comprise less than 20% of the
Company's resultant issued and outstanding shares or (iii) issuance of
Common Stock upon conversion of the Offered Securities or any other
securities offered concurrently with the Offered Securities.
(h) Whether or not the transactions contemplated in this
15
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 Offered 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 Prospectus and amendments and supplements to any of the
foregoing, including 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 Offered 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 Offered Securities
under state law and all expenses in connection with the qualification of
the Offered Securities for offer and sale under state law as provided in
Section 6(d) 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) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (v) 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
Offered Securities by the National Association of Securities Dealers, Inc.,
(vi) any fees charged by the rating agencies for the rating of the Offered
Securities, (vii) all fees and expenses in connection with the preparation
and filing of the registration statement on Form 8-A relating to the
Securities and all costs and expenses incident to listing the Offered
Securities on the NYSE, (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 Offered Securities,
including, without limitation, 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) 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 and (x)
all document production charges and expenses of counsel to the Underwriters
incurred in connection with the preparation of the Indenture. It is
understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their
16
counsel, and any advertising expenses connected with any offers they may
make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and 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 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 or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
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 statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
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 the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements 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 either Section 7(a) or 7(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
17
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, in the case of parties indemnified pursuant to Section 7(a) above, and
by the Company, in the case of parties indemnified pursuant to Section 7(b)
above. 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
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 7(a) or
7(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 Offered Securities or (ii) if the allocation
provided by clause 7(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 7(d)(i) above but also the relative fault of the Company on the one
hand and of 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 Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the
18
offering of such Offered Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate Public Offering Price of the
Offered Securities. The relative fault of the Company on the one hand and 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 7 are several in proportion to the respective principal
amounts of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 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 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph 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 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
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 7 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
7 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 or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
19
delivery of the Underwriting 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
National Association of Securities Dealers, Inc., 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 general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and adverse
and (b) in the case of any of the events specified in clauses 8(a)(i) through
8(a)(iv), such event, singly or together with any other such event, makes it, in
the judgment of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such amount of
Underwriters' Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters' Securities and the aggregate amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Underwriters' Securities to be purchased on such date,
and arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' 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 the Manager 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 and 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
20
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)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. 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.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. 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.
21
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 200___
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation,
a Delaware corporation (the "COMPANY"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"SECURITIES"), offered by the Company's Prospectus dated May 8, 1998 and
Prospectus Supplement dated _________, 200__, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this Agreement. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amount and numbers on the delivery dates set forth in Schedule A. Each such date
on which Securities are to be purchased hereunder is hereinafter referred to as
a "DELIVERY DATE."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "UNDERWRITERS") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as 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.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement 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.
If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
(Purchaser)
By:
----------------------------
(Title)
----------------------------
----------------------------
(Address)
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:
--------------------------
Name:
Title:
2
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
------ --------------------- ----------
------ --------------------- ----------
3
SCHEDULE A
SECURITIES:
PRINCIPAL AMOUNTS OR NUMBERS TO BE PURCHASED:
PURCHASE PRICE:
DELIVERY: